Pham v Minister for Immigration and Multicultural Affairs
[2006] FCA 911
•7 JULY 2006
FEDERAL COURT OF AUSTRALIA
Pham v Minister for Immigration & Multicultural Affairs
[2006] FCA 911PHAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NSD 912 OF 2006
LINDGREN J
7 JULY 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 912 OF 2006
BETWEEN:
VAN HUNG PHAM
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
7 JULY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for extension of time within which to file and serve a notice of appeal be dismissed.
2.The applicant pay the respondent costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 912 OF 2006
BETWEEN:
VAN HUNG PHAM
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
7 JULY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant seeks an extension of time in which to file and serve a notice of appeal from the judgment of a Judge of this Court (Tamberlin J) given on 29 March 2006. The application before his Honour sought judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) of 9 June 2005, affirming the issue of a Deportation Order against the applicant by a delegate of the respondent (“the Minister”).
The 21 day period in which an appeal lay as of right expired on 19 April 2006. The applicant lodged the present application for an extension of time on 12 May 2006. Annexed to the application was a draft notice of appeal. The applicant can be regarded as being 23 days out of time.
In order to succeed on the present application, the applicant must (a) satisfactorily explain his delay; and (b) propound grounds of appeal that have arguable prospects of success, or, as it is sometimes expressed, that warrant the attention of an appellate court.
ADJOURNMENT APPLICATION
The applicant applied for an adjournment of today’s hearing on the basis that he needed legal representation. He did not specify the period of the adjournment sought. I refused the adjournment, giving as reasons that there was no evidence or suggestion that the applicant had prospects of being legally represented by any particular legal practitioner within any particular period of time. I also referred to the background facts. Particular background facts that are relevant are the following:
a.the decision to issue the deportation order was made by a delegate of the Minister on 1 May 2000; i.e. more than six years ago;
b.this is not a matter in which the applicant had been deprived of any legal assistance in the past; in fact, he was represented by solicitor and counsel before the Tribunal, and by a solicitor in the proceeding before Tamberlin J;
c.following the Tribunal’s decision, the applicant filed his application in the Federal Magistrates Court of Australia on 13 October 2005, some three and a half months out of time;
d.the applicant applied for an adjournment before Tamberlin J, and had apparently applied for an adjournment before the Tribunal;
e.the applicant has had some three months in which to obtain legal representation; and
f. the proposed appeal has no prospects of success.
On the substantive hearing before me, the applicant tendered, and I admitted subject to relevance, two letters to the applicant, one from the Pro Bono Solicitor of the Law Society of New South Wales, the other from Legal Aid New South Wales. Both had decided not to assist the applicant on the ground of lack of reasonable prospects of success. While this evidence confirms that the applicant had, as stated in his written submissions, attempted to obtain legal representation, it also shows that his attempts have been futile. I am confirmed in my view that the case for an adjournment was not made out.
BACKGROUND
Mr Markus, the solicitor for the respondent has supplied the following “chronology of relevant events”, taken from the reasons for decision of the Tribunal (at [2]).
‘CHRONOLOGY OF RELEVANT EVENTS
10 March 1972 The applicant was born in North Vietnam.
1988The applicant travelled to Hong Kong seeking refugee status.
1988 – 1993The applicant lived in detention in a refugee camp in Hong Kong. During this time he married a fellow refugee.
1993 – 1994The applicant lived in a refugee camp in the Philippines. Here he met Thi Thuy Hang Le.
29 June 1995 The applicant entered Australia sponsored by his wife. He claims that his marriage was dissolved soon thereafter. No decree of dissolution has been produced. He commenced living in a de facto relationship with Thi Thuy Hang Le “soon after” his arrival in Australia.
17 April 1997 Approximately 21 months after arriving in Australia the applicant and two other men committed an armed robbery during which a 67 year old man was severely assaulted and money was stolen from him. One offender was armed with a loaded pistol. The applicant was armed with a Ghurkha style knife with which he assaulted the victim by striking him with the handle.
13 October 1997 The applicant pleaded guilty in the District Court of NSW to one count of robbery being armed in company and wounding contrary to s 98 of the Crimes Act 1900 (NSW).
13 February 1998 The applicant was sentenced to 5½ years imprisonment with a minimum term of 3 years, backdated to 17 April 1997 and expiring on 16 April 2000, at which date the applicant was to be released on parole for the balance of the sentence.
22 June 1998 An officer of DIMA wrote to the applicant advising him he may be liable for deportation pursuant to s 200 of the Migration Act 1958.
2 August 1998 The applicant’s appeal against the severity of his sentence was dismissed by the NSW Court of Criminal Appeal.
18 January 2000 The applicant was interviewed at prison by DIMA officers with respect to his liability for deportation.
16 April 2000 The applicant was released from prison on parole.
1 May 2000The Minister’s delegate signed a Deportation Order in respect of the applicant.
25 May 2000 DIMA wrote to the applicant advising that a decision had been made as to his deportation and asking the applicant to contact the relevant officer.
30 May 2000 The applicant was spoken to and advised by DIMA officers of the decision to deport him. He was requested to attend the DIMA office on 2 June 2000 to be detained. The applicant did not keep this appointment and was not detained.
May 2000 –The applicant remained at large and was living
February 2003 with Thi Thuy Hung Le who became pregnant to him early in 2003.
22 February 2003 The applicant was arrested by New South Wales police on one charge of shoplifting and a charge of parole violation. He was sentenced to imprisonment for 1 year, 3 months and 27 days in respect of parole violation and for 1 month (concurrent) in respect of “goods in custody reasonably suspected of being stolen”. He was incarcerated at Silverwater Prison.
7 May 2003The applicant escaped from custody during an escorted visit to hospital from the prison.
May 2003 -The applicant again remained at large.
February 2004
27 October 2003 The applicant’s son Andrew was born.
14 February 2004 The applicant was arrested by police at Sunshine in Victoria and charged with theft.
15 March 2004 The applicant was convicted and sentenced to 4 months imprisonment for theft in the Victorian Magistrates Court.
23 March 2004 The applicant was served in Port Philip Prison with the Deportation Order dated 1 May 2000.
13 June 2004 The applicant was extradited from Victoria to NSW to be deal [sic: dealt] with in respect of his escape from custody and breach of parole.
15 June 2004 The applicant was sentenced to 18 months imprisonment for escaping from custody in the Sydney District Court. His release date is likely to be 14 June 2005 [The applicant has served this sentence and is now in immigration detention at the Villawood Immigration Detention Centre].’
The applicant, a citizen of Vietnam, entered Australia on 29 June 1995 sponsored by his then wife. On 1 May 2000, the Minister’s delegate signed a Deportation Order in respect of the applicant pursuant to the power conferred by s 200 of the Migration Act 1958 (Cth) (“the Act”). Section 200 of the Act, in conjunction with s 201, gave the Minister a discretionary power to order the deportation of a non-citizen in circumstances where the non-citizen had been convicted of an offence, if the person had been in Australia as a permanent resident for a period of less than ten years and the offence carried a sentence of imprisonment for a period of not less than one year. The applicant had been convicted on 13 February 1998 of Robbery being Armed in Company with Wounding and had been sentenced to a minimum term of three years’ penal servitude with an additional term of two and a half years to commence on the expiration of the minimum term.
THE PROCEEDING BEFORE THE TRIBUNAL
Before the Tribunal, the applicant challenged the exercise of the Minister’s discretion. The applicant claimed that it was in the best interests of his child, who was one and a half years old at the time of the Tribunal’s decision and an Australian citizen, that the deportation order be revoked. The applicant claimed that his child visited him from time to time in prison. He further claimed that: there would be a degree of hardship to the applicant’s de facto wife, Ms Thi Thuy Hang Le, as she would be unable to return to Vietnam because of her refugee status in Australia; that the applicant had suffered post-traumatic stress as a result of his experiences in refugee camps in Hong Kong and the Philippines before coming to Australia; and that the applicant’s repatriation to Vietnam placed him at risk of adverse discrimination by the Vietnamese authorities in view of his conduct before he left Vietnam.
In considering the applicant’s claims the Tribunal decided, on balance and weighing up all the issues, that the deportation order was “correctly and appropriately made”. The robbery in question was extremely grave and serious and abhorrent to the community, and there was considered to be a risk of recidivism by the applicant. As such, the Tribunal considered that Australian community expectations required that the applicant be deported, unless hardship or other issues favourable to the applicant’s cause outweighed community expectations in this regard. The Tribunal made a favourable finding for the applicant, however, in relation to the best interests of the child, but noted that this finding would have to be reviewed if the applicant offended or was incarcerated again. The Tribunal concluded there was no evidence to support the claim that the applicant’s de facto wife would be unable to return to Vietnam. In relation to hardship to the applicant, the psychologist’s report provided by the applicant was nearly seven years old. Moreover, the psychologist had stated that the applicant displayed appropriate responses to questions and to emotional issues, and that his thought processes were ordered, and thus there was no suggestion of thought or mood disorder.
The Tribunal found, in light of the reasons of the original decision-maker and independent country information, that there was not a real chance of persecution to the applicant in the reasonably foreseeable future if he were to return to Vietnam.
THE PROCEEDING BEFORE THE PRIMARY JUDGE
The application in the Federal Magistrates Court of Australia was transferred by consent to this Court on 18 November 2005.
The grounds of review relied on were:
(a)that the decision was void for jurisdictional error;
(b)that the Tribunal made an error of law;
(c)that the Tribunal failed to accord procedural fairness; and
(d) that the Tribunal had arrived at a result that was manifestly unjust.
In his amended application to this Court filed on 12 January 2006, the applicant advanced various claims. These included a claim that the Department of Immigration and Multicultural Affairs, the Minister and the Minister’s delegate fell into error of law and administrative error when deciding to make the deportation order, as it was not fair and reasonable to deport the applicant at the end of a non-parole period because the applicant had not served the entire sentence (the applicant claimed that the period of release on parole was part of the sentence imposed on him). The applicant claimed that this provided no opportunity for him to demonstrate rehabilitation, and that the delegate had failed to give adequate consideration to the likelihood of rehabilitation. The applicant also relied on jurisdictional error by the Tribunal due to a failure to provide “adequate, proper, genuine and realistic consideration to the best interests of the child”. The applicant finally raised issues in relation to the consequences to him and his family if he were to return to Vietnam.
After reviewing the Tribunal’s decision, Tamberlin J dismissed the application. His Honour found that it was not logical to suggest that because the applicant’s de facto wife had been accepted as a refugee in Australia, she would now necessarily be subject to persecution upon her return to Vietnam. Furthermore, persecution by reason of her having been of refugee status in Australia was a question of fact for the Tribunal which was not obliged to inquire further or adduce evidence. His Honour found no procedural unfairness by the Tribunal in relation to the Tribunal’s failure to source a more recent psychological report on the applicant. He stated there was no obligation on the Tribunal to seek out a final psychological report, and it was entitled to take the applicant’s lack of evidence in this respect into account. His Honour considered that the Tribunal did make a favourable finding for the applicant in terms of the best interests of the child, but that this factor was “weighed in the balance with cogent considerations and was not seen to be determinative in itself”. In relation to the issue of rehabilitation, his Honour concluded that, contrary to the applicant’s submissions, the Tribunal had addressed the issue and in fact had made an adverse finding on this ground, by reference to the matter of recidivism. Finally, his Honour also noted that the question of the weight of the competing considerations was one of fact for the Tribunal and was not reviewable.
THE APPLICATION FOR EXTENSION OF TIME
Annexed to the applicant’s application for an extension of time filed on 12 May 2006 was a draft notice of appeal that stated the following grounds:
‘Best interest of my child.
Procedural fairness.
Misleading information by legal representative.
The rights of my child as a citizen not taken into
consideration.·No Warning.
·Treated Unjustly
·Natural Justice.’
In both his affidavit and draft notice of appeal, the applicant raised the issue of procedural fairness in relation to his having been relocated to the Long Bay Correctional Facility from the Villawood Immigration Detention Centre due to asbestos complications. He claimed that the relocation made it difficult to lodge his notice of appeal as some information was unavailable to him and he was under stress. Furthermore, he claimed there was professional incompetence on the part his migration agent by his failure to lodge the notice of appeal in time.
The applicant filed a document entitled “Affidavit submissions of Van Hung Pham” and made oral submissions (mostly through an interpreter) on the hearing.
The affidavit deals largely with procedural matters. For example, it attaches a notice dated 10 April 2006 from the Department of Immigration and Multicultural Affairs confirming that the applicant was indeed to be relocated because of an asbestos problem. Other parts of the affidavit challenge factual findings.
CONSIDERATION
As submitted by Mr Markus, none of the “grounds” of appeal proposed by the applicant are directed at the judgment of Tamberlin J. Even so, the applicant’s attempt to challenge the Tribunal’s factual findings on these grounds is unconvincing.
The applicant submits that the Tribunal was bound to seek further evidence. It was not. He asserts that there was no opportunity for him to put evidence before the Tribunal. There was. The applicant again refers to the interests of his child, but, as Tamberlin J observed, the Tribunal did not consider that the evidence established a close relationship between them. As his Honour noted, this view was open to the Tribunal on the evidence that was before it. This matter was dealt with by the Tribunal and by Tamberlin J and there is no reason to question the correctness of his Honour's treatment of that topic. Lest there should be any misunderstanding, the relatively short period of time in which contact has even been possible between the applicant and his child is suggested by the chronology of relevant events set out above.
In his oral submissions today, the applicant has referred to problems that he had in connection with legal representation before the Tribunal. He asserts from the bar table that he did not have a conference with the solicitor who appeared for him prior to the Tribunal hearing. This was not a matter raised before Tamberlin J and when I mentioned this to the applicant, he agreed but blamed the legal representation that he had before Tamberlin J for not having raised it. He also blames the person who assisted him in preparing the present application for an extension of time for not having referred to it in the draft notice of appeal. There is no substance in the point raised as a ground of appeal.
In summary, no arguable error in the reasons of Tamberlin J, calling for the attention of a Full Court, is demonstrated. For this reason there should not be an extension of time for the filing and service of a notice of appeal. This conclusion makes it unnecessary for me to consider the question whether the 23-day period of delay is adequately explained.
CONCLUSION
For the above reasons the application for the extension of time should be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 17 July 2006
The Applicant appeared in person. Solicitor for the Respondent: Mr A Markus Date of Hearing: 7 July 2006 Date of Judgment: 7 July 2006
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