Omar, Omar Ahmed v Department of Immigration & Multicultural Affairs
[1997] FCA 1403
•11 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - Deportation - Non‑citizen in detention pending deportation - Decision to deport affirmed by Administrative Appeals Tribunal - Appeal to Court - Application for “bail” ‑ Power to order release from detention.
PRACTICE - Appeal to Court from decision of Administrative Appeals Tribunal affirming Minister’s decision to deport non‑citizen - Application by Minister for dismissal of appeal as disclosing no reasonable cause of action - Effect of dismissal on non‑citizen’s application for “bail”.
Federal Court of Australia Act 1976 ss 19, 23
Rules of the Federal Court O 20 r 2
Minister for Immigration v Msilanga (1992) 34 FCR 169 applied
Piroglu v Minister for Immigration (1981) 55 FLR 99 applied
Unlugenc v Minister for Immigration (1982) 43 ALR 569 applied
Re Salazar‑Arbelaez and the Minister for Immigration (1977) 18 ALR 36 cited
Minister for Immigration v Teoh (1995) 183 CLR 273 considered
Re Lawson and the Minister for Immigration (1996) 43 ALD 661 considered
General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125 applied
Re Drake and Minister for Immigration (No 2) (1979) 2 ALD 634 applied
OMAR AHMED OMAR v DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 569 OF 1997
SUNDBERG J
11 DECEMBER 1997
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 569 of 1997
BETWEEN:
OMAR AHMED OMAR
APPLICANTAND:
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE OF ORDER:
11 DECEMBER 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The applicant’s appeal from the decision of the Administrative Appeals Tribunal affirming the respondent’s decision to deport him be dismissed as disclosing no reasonable cause of action.
The applicant’s motion for release from custody be dismissed.
The applicant pay the respondent’s costs of the respondent’s motion notice of which was filed on 17 November 1997 and of the applicant’s motion notice of which was filed on 11 November 1997.
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 569 of 1997
BETWEEN:
OMAR AHMED OMAR
APPLICANTAND:
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SUNDBERG J
DATE:
11 DECEMBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
MATTERS BEFORE THE COURT
On 6 June 1997, pursuant to s 200 of the Migration Act 1958 (“the Act”), the respondent’s delegate ordered that the applicant be deported from Australia. On the date of the order the applicant was in custody. He was to have been released on parole on 28 July, but the effect of the order is that he remains in custody. Cf ss 253 and 254 of the Act. The applicant applied to the Administrative Appeals Tribunal for a review of the decision to deport him. On 15 July he applied to the respondent for release from detention pursuant to s 253(9). The application was refused. The applicant did not seek a review of that decision. On 26 September the Tribunal affirmed the decision that the applicant be deported. The applicant has appealed to the Court against the Tribunal’s decision. He has now applied for “bail”. The respondent has applied pursuant to O 20 r 2 of the Rules for an order that the appeal be dismissed as a “proceeding [in which] no reasonable cause of action is disclosed”. The word “proceeding” means “a proceeding in a court ... and also includes an appeal”: s 4 of the Federal Court of Australia Act 1976. In my view, the appeal against the Tribunal’s decision is an “appeal” for the purposes of s 4 even though it is in the original jurisdiction of the Court. See s 19(2) and cf O 53 of the Rules. If it is not an appeal for those purposes, it is “a proceeding” in the Court. The matters now before me are the application for “bail” and the dismissal application.
“BAIL” APPLICATION
I will treat the application for “bail” as an application that the applicant be released from detention. The Court’s jurisdiction to make such an order derives from ss 19 and 23 of the Federal Court of Australia Act: Minister for Immigration v Msilanga (1992) 34 FCR 169. Section 23 confers on the Court power, in relation to matters in which it has jurisdiction, to make such orders, including interlocutory orders, as it thinks appropriate. The “matter” within the Court’s jurisdiction is the appeal from the Tribunal’s decision. The questions on the release application are whether there is a serious question to be tried on the appeal, and whether the balance of convenience favours release: Msilanga at 179, 182; Piroglu v Minister for Immigration (1981) 55 FLR 99 at 102; Unlugenc v Minister for Immigration (1982) 43 ALR 569 at 571.
If I were to grant the respondent’s application and dismiss the appeal, there would be no “matter” falling within s 23, and I would lack the power to order the applicant’s release. Accordingly I will first consider the respondent’s application. But before doing so I will briefly describe the course of the Tribunal’s reasoning.
TRIBUNAL’S REASONS
The Tribunal first set out ss 200 and 201 of the Act. Section 200 empowers the Minister to order the deportation of a non‑citizen to whom the section applies. Section 201 provides that s 200 applies to a person 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; ...
...and
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year ....
The Tribunal found that the applicant entered Australia on 17 December 1976 with his parents, two brothers and three of his four sisters when the family came as migrants from Lebanon. On 13 December 1985 he was convicted of an offence of breaking and entering with intent, and was sentenced to eighteen months imprisonment. Accordingly the Tribunal found that he is a person to whom s 200 applies.
The Tribunal summarised Australia’s Deportation Policy which is contained in the then Minister’s statement to Parliament on 24 December 1992. It is not necessary for me to repeat that summary. The Tribunal observed that it should follow the Policy unless there is good reason not to do so: Re Drake and Minister for Immigration (No 2) (1979) 2 ALD 634 at 645. The Tribunal recounted the applicant’s criminal history. He has numerous convictions dating from 1979 for drug‑related and other offences. He has been convicted at various times of possessing, smoking and supplying cannabis, for which he has been fined and on one occasion (October 1984) given a suspended sentence of imprisonment. He has been convicted on two occasions of possession of heroin, for which he received a suspended sentence of imprisonment and a three month term respectively. In 1985 he was convicted of the breaking and entering offence already mentioned and sentenced to eighteen months imprisonment. In 1987 he was convicted on ten counts of supplying heroin for which he received six and a half years imprisonment. In 1991 he was convicted of possessing a trafficable quantity of heroin for supply and sentenced to five and a half years imprisonment. The sentence was increased to ten years on the Crown’s appeal to the Full Court of this Court. The trial judge described the applicant’s activities as a “very busy flourishing illegal business of selling heroin in Canberra”. The Full Court pointed to the following findings:
the applicant was a heroin user but apparently was not an addict
he played a dominant role in the direction of the drug ring’s activities
he had in his possession at the time he was arrested “a significantly large amount of heroin” which had been divided into seventy packages
although the possibility of rehabilitation could not be ruled out, the applicant’s past record in relation to drug offences gave little ground for optimism
the offence occurred not only while the applicant was on parole but while he was on bail pending trial on similar alleged offences.
The Tribunal accepted the trial judge’s description of the applicant’s heroin business and the findings endorsed by the Full Court.
The Tribunal quoted the observation of Brennan J in Re Salazar‑Arbelaez and the Minister for Immigration (1977) 18 ALR 36 at 39 that the “danger to be apprehended from the reversion to the use and sale of heroin is so serious that the decision‑maker should be satisfied that there is no more than a minimal risk of reversion” before accepting an assurance by an offender that he will not re‑offend. The Tribunal was not satisfied that the applicant “is, or has the potential to be, rehabilitated”.
The Tribunal referred to the Convention on the Rights of the Child, and to Minister for Immigration v Teoh (1995) 183 CLR 273 at 292 where Mason CJ and Deane J, speaking of art 3.1 of the Convention, said that a decision‑maker must look to the best interests of the children “as a primary consideration”, and ask whether the force of any other considerations outweigh it. With this in mind the Tribunal examined the applicant’s family situation. He has six children, one born in 1991 of a relationship with Ms McPhee. The applicant has seen that child only twice. There is no suggestion that he has or proposes to develop a relationship with the child or has provided it or proposes to provide it with any financial support. The applicant’s other five children were born of a relationship with Ms Rushton. They range in age from 17 to 10. One is severely disabled and has been a ward of the State since 1986. There is little or no contact between that child and the rest of the family. Ms McPhee and Ms Rushton were convicted and sentenced to imprisonment for supplying heroin in circumstances connected with the activities that led to the applicant’s conviction in 1991.
The Tribunal noted that the eldest child, Mustafa, who is 17 years old, had visited the applicant on a fortnightly or monthly basis while he was in Barwon prison. After the applicant’s transfer to Dhurringile (which is near Shepparton), visits had been less regular. In the last year they had been even less frequent because of Mustafa’s need to study. The applicant talked to his children by telephone up to two or three times a week. The Tribunal accepted that the applicant enjoys a strong relationship with four of his six children despite the difficulties associated with him not being physically present during much of the last ten years. It accepted that if the applicant were to be returned to Lebanon the children would suffer hardship.
The Tribunal acknowledged that political conditions in Lebanon were unstable, that Mustafa, and probably the other children, see their lives as being in Australia, and that Ms Rushton did not say that she would follow the applicant to Lebanon. The applicant would have no language problem in Lebanon. He lived there until he was twenty, and has a sister and a brother there. His trade skills were acquired in Lebanon. The Tribunal was satisfied that the applicant would have family members to give him support were he to return to Lebanon, and that he has the qualifications to obtain paid employment there.
The Tribunal referred to the warnings of deportation that had been given to the applicant, and to the fact that the Policy requires that where a warning has been administered and the person commits a further deportable offence, he should expect that the fact that the warning has been given will be accorded serious weight in the consideration of his case. It noted that the two serious heroin offences were committed after the applicant had been warned of the possibility of deportation.
The Tribunal referred to the disadvantages to the applicant of his return to Lebanon. He would be separated from his siblings who live in Australia, though he would be able to renew his relationship with the sister and brother and their families who live in Lebanon. Ms Rushton would be denied the opportunity of renewing her relationship with the applicant. The Tribunal concluded by saying:
All of those considerations, however, are not as weighty as considerations arising from his separation from four of his children if he is returned to Lebanon.
...
No decision‑maker could approach the making of a decision which would result in separation of a parent from a number of young children with anything other than the greatest concern. By his criminal conduct and as the result of the sentences he has received, which have separated him from the day to day care of his children, the applicant has not evidenced the degree of parental responsibility which those children have the right to expect. That the four of his children with Ms Rushton have managed to stay together and succeed in undertaking their schooling, as is evidenced by the very level headed approach adopted by Mustafa, is not as the result of the applicant’s influence, but rather as the result of the influence of his parents, his brother and more latterly, of Ms Rushton. The fact that the Tribunal does not accept the applicant as a candid witness and is unable to accept his assurances as to his likely future conduct, along with the Tribunal not accepting him as either being rehabilitated, or being a prospect for successful rehabilitation, when added to the consideration that he has in the past exerted a strong adverse influence over those close to him by involving them in his criminal activities, leaves the Tribunal satisfied that there is an unacceptably high risk to the Australian community if he was to be allowed to remain. Accordingly, the hardship arising from the physical separation which may be suffered by the applicant and by his children ‑ Mustafa, Ali, Humzy and Hamed ‑ is outweighed by factors relating to the unacceptably high risk to the Australian community, including to those children, which may result from the applicant involving himself in serious drug related criminal activity after his release.
I have not recounted all the facts and matters set out in the Tribunal’s comprehensive and balanced reasons for decision.
GROUNDS OF APPEAL
There are seven grounds of appeal in the applicant’s Amended Notice of Appeal drawn by his former solicitors:
(a)The Tribunal misconstrued the phrase “the best interests of the child shall be a primary consideration” in art 3(1) of the Convention.
(b)The Tribunal failed to give proper consideration to the best interests of each of the applicant’s children.
(c)The Tribunal’s decision is contrary to law in that it follows the Deportation Policy.
(d)Proper consideration was not given to ss 200 and 201 of the Act.
(e)Proper consideration was not given to Re Lawson and the Minister for Immigration (1996) 43 ALD 661 and Minister for Immigration v Teoh (1995) 183 CLR 273.
(f)Too much weight was given to the consideration of recidivism as opposed to the impact of the applicant’s deportation on his family.
(g)When all the applicant’s circumstances are taken into consideration, the Minister’s decision should not have been affirmed.
A summary order which prevents a party from pursuing a claim should be made only in a very clear case, as where the claim is manifestly groundless: General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125 at 129, 138.
(a) “best interests of the child shall be a primary consideration”
The Tribunal set out art 3(1), stated the effect of Teoh, and noted that Mason CJ and Deane J said at 289 that while the best interests of the child are a primary consideration they do not constitute the only consideration, and that the interests of the child are to be given equal weight with other considerations which might be relevant in the particular case. That is an accurate rendering of the import of the passage at 289. The Tribunal then quoted from their Honours’ reasons at 292: “a decision‑maker with an eye to the principle enshrined in the Convention will be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it”. Then, using its own words, the Tribunal said that it approached its task on the basis that “the separation as a result of deportation of a father or mother from his or her children should always be a primary consideration to any administrative decision maker”.
The claim that the Tribunal misconstrued the “best interests” phrase has no substance. Whichever of the formulations collected by Barwick CJ in General Steel be preferred, each applies to the present ground of appeal. It is so obviously untenable that it cannot possibly succeed. To assail as a “misconstruction” an accurate rendering of the High Court’s exposition of the meaning of the phrase in question is manifestly groundless.
(b) failure to give proper consideration to best interests of children
There is no doubt that the Tribunal gave the closest and most anxious consideration to the interests of the children. The principal effect of the applicant’s deportation would be on four of the children of his relationship with Ms Rushton. The Tribunal accepted that the applicant enjoys a strong bond with these children despite the fact that he has been in prison for much of the last ten years. It also accepted that the four boys enjoy a good relationship with their father, which they hope will develop further if he remains in Australia. Accordingly it accepted that if the applicant is to be deported the children will suffer hardship. The Tribunal underlined the seriousness it attached to the effect of deportation on the children. As it said, no decision‑maker could view the separation with anything other than the greatest concern. However, it pointed out that as a result of the applicant’s criminal conduct he had separated himself from the day to day care of the children, and had not evidenced the degree of parental responsibility the children had the right to expect. The Tribunal observed that it did not accept the applicant as a candid witness in relation to his assurances as to his reformed behaviour in relation to drugs, or as to his prospects of successful rehabilitation. Also put into the balance was the fact that in the past the applicant had exerted a strong adverse influence over those close to him (Ms Rushton and Ms McPhee) by involving them in his criminal activities. These cumulative considerations led the Tribunal to conclude that the hardship arising from the physical separation of the children from the applicant was outweighed by the unacceptably high risk to the community, including the children, that may result from the applicant involving himself in serious drug related activity after his release. In the light of the Tribunal’s findings of fact, and the balancing process in which it engaged, it is impossible to say that its conclusion was not open to it. It carefully weighed the welfare of the children against the welfare of the community, and came to its conclusion. In doing so it noted that these two primary considerations are not mutually exclusive, since the “community” includes the children. All that could be put on the hearing of the appeal is that the Tribunal should have accorded sufficient additional weight to the interests of the children to have produced a different result. That is not a contention available on an appeal, since it does not assert an error of law. It is plainly an invitation to the Court to review the merits of the Tribunal’s decision. In my view the claim that the Tribunal failed to give proper consideration to the interests of the children is manifestly groundless.
(c) following Deportation Policy
The Tribunal made no error of law in applying the Policy. The Policy is to be followed unless there is good reason not to do so: Re Drake (1979) 2 ALD at 645. There was no reason why the Policy should not have been followed. Although the Policy requires the Tribunal to take into consideration the fact that hardship would be caused to lawful residents of Australia who will be adversely affected by the deportation, the Tribunal did not consider the interests of the children under this head. It had regard to the more exacting requirements of the Convention. In my view the applicant has no prospect of establishing that it was “contrary to law” for the Tribunal to have followed the Policy.
(d) no proper consideration of ss 200 and 201
Having set out ss 200 and 201 the Tribunal recorded the facts relevant to the requirements of s 201, and concluded that the applicant’s circumstances satisfied them. The material before the Tribunal established that the applicant was a non‑citizen and that in 1985 he had been convicted in Australia of an offence. Paragraph (a) of s 201 was thus satisfied. When the offence was committed, the applicant was a non‑citizen who had been in Australia as a permanent resident for less than ten years. Paragraph (b) was thus satisfied. The applicant was sentenced to a period of imprisonment of not less than a year in respect of the offence. Paragraph (c) was thus satisfied. Therefore s 200 applied to the applicant, and the Minister was empowered to order his deportation. Indeed it was not in contention before the Tribunal that the requirements of s 201 were satisfied and that s 200 applied to the applicant. In those circumstances there is no substance at all in the complaint that the Tribunal failed to give proper consideration to ss 200 and 201. This seems to be reflected in the applicant’s solicitors’ formulation of the question of law said to be raised by the appeal ‑ “the fair and just administration” of ss 200 and 201. That does not formulate any comprehensible question of law.
The applicant contended before me, (though he had not so contended before the Tribunal), that s 201 was not satisfied because although at the time of his 1985 conviction for breaking and entering he had been in Australia for less than ten years, by the time of his 1987 heroin conviction he had been in the country for more than ten years. He submitted that the 1987 conviction was the “real deportable offence”, but that the Minister could not rely on it because it was outside the ten year period. The Minister was thus forced to rely on the 1985 conviction, even though it was the 1987 conviction that lay behind his decision to deport the applicant. This submission faces insurmountable difficulties. First, it is simply not within the Court’s power to entertain it. It purports to attack the respondent’s reliance on the 1985 conviction as the basis for the deportation decision, whereas the Court’s jurisdiction is limited to the correction of errors of law made by the Tribunal. The Court’s function does not extend to investigating the respondent’s application of s 201 to the applicant. As I have said, the Tribunal committed no error of law. In any case the submission overlooks s 204(1) which, so far as relevant to the present case, provides that
Where a person has been convicted of any offence ... the period ... for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 ..., the length of time that that person has been present in Australia as a permanent resident ....
Although he was sentenced to imprisonment for eighteen months for breaking and entering, the applicant spent only eight months in prison. The effect of s 204(1) therefore was to extend the ten year period by eight months so that it expired at the earliest on 17 August 1987. The applicant’s 1987 conviction occurred on 17 June 1987; within the ten year period. Thus, contrary to the applicant’s contention, the Minister could have relied on the 1987 conviction, though he did not. The final difficulty with the submission is that there is nothing in s 201 that affords any support for the view that the Minister may not rely on a sentence for an offence committed within the ten year period where the offender has been sentenced for a later offence committed within that period.
There is in my view no prospect at all of success on the ground of appeal that the Tribunal made an error of law in its consideration of ss 200 and 201.
(e) no proper consideration of Lawson and Teoh
The Tribunal set out the facts in Lawson and distinguished it from the applicant’s case. Lawson had been sentenced on two counts of selling heroin to twelve and eighteen months respectively, to be served cumulatively. Lawson was an addict, but the Tribunal accepted that he had succeeded in breaking a heroin addiction and was committed to remaining drug free. The Tribunal was impressed by his candour. In all respects the applicant’s case was, as the Tribunal said, different. Two of the applicant’s offences were much more serious than Lawson’s, and the sentences imposed were, appropriately, much more severe. The Tribunal was not restricted to a consideration of the particular offence specified in the deportation order. Under the Policy it was to have regard to the applicant’s total criminal history. The applicant was not an addict. The Tribunal did not accept that the applicant was committed to steering clear of drugs. It did not find the applicant to be candid. Lawson was, as the Tribunal said, readily distinguishable. The applicant’s prospects of persuading the Court on the appeal that the Tribunal did not give proper consideration to Lawson are non‑existent. As I have said, the Tribunal also referred to Teoh, accurately stated the effect of the decision, and applied it. The applicant has no prospects of establishing on the appeal that the Tribunal failed to give proper consideration to that case.
(f) too much weight to recidivism
The claim that the Tribunal gave too much weight to the risk of recidivism as opposed to the impact of the deportation on the applicant’s family is an invitation to the Court to enter upon the merits of the decision. The complaint that “too much weight” was given to recidivism can only mean that sufficient extra weight should have been given to the impact of deportation on the family to have produced a different result. No error of law is disclosed by this ground.
(g) all the applicant’s circumstances
The claim that when all the applicant’s circumstances are taken into account the Minister’s decision should not have been affirmed is even more clearly an attempt to attack the merits of the decision. It has no hope of succeeding.
CONCLUSION
For the above reasons the applicant’s contentions on the appeal are in my view manifestly groundless. To allow it to proceed would involve useless expense. Cf General Steel at 138. It should be dismissed now.
RELEASE APPLICATION
As I have said, once the appeal is dismissed there is no subsisting “matter” within s 23, and there is no power to order release under that section. But it will be clear from what I have said about the prospects of success on the appeal, that even if the O 20 r 2 application had not been made, I would not have ordered the applicant’s release. For the reasons I have given for dismissing the appeal, the applicant has not established that there is a serious question to be tried on the appeal. The balance of convenience is also against the applicant. He has a long criminal history in this country. In the twenty years he has been here he has had twenty‑four convictions. Some of them have been for serious offences. The offence for which he was sentenced in 1991 was committed while he was on parole and on bail pending trial for similar alleged offences. He has exhibited no remorse or real understanding of the seriousness of his crimes. Before me he professed remorse, but it was quite apparent from his words and demeanour that this was largely directed to his own plight, or was at best a concern about the effect of his incarceration on his family. There was no genuine concern for the effect of his activities on those to whom he supplied heroin. He has received three warnings about his liability to deportation as a result of his criminal activities, and has ignored the warnings. As the Tribunal found, the probability of recidivism upon release is great, as evidenced by his entire criminal history. In addition he has had the benefit of a full merits review by the Tribunal of the deportation order, and the Minister’s decision was affirmed.
DECISION
The appeal to this Court and the application for release are dismissed.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg
Associate:
Dated: 11 December 1997
The applicant appeared in person. Counsel for the Respondent: C Gunst Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 November 1997
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