Renata, R.R. v Minister for Immigration & Ethnic Affairs

:26 8

LIMITED DISTRIBUTION

CATCHWORDS

PRACTICES AND PROCEDURE

- Application for stay

- Deportation of

non-citizen convicted of criminal offence

- Appeal to

Administrative Appeals Tribunal

- Decislon of Tribunal affirming

decision to deport - Appeal to Federal Court - Application for

stay of order pending determination of appeal - Whether serious

question of law to be argued - Relevance of lack of contrition

and failure to make restitution where convicted person maintains

innocence.

--- - ._

Administrative Appeals Trlbunal Act

1975 s.44~(2)

Migration Act 1958	s.12
NSW G.271 of 1986

RODNEY RANGIMOANA RENATA

V MINISTER FOR IMMIGRATION AND ETHNIC

AFFAIRS

Wilcox J

Sydney

9 July 1986

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
\

NEW

SOUTH

WALES

DISTRICT

REGISTRY

)

No.

G.271 of 1986

)

DIVISION

GENERAL

BETWEEN: RODNEY RANGIMOANA RENATA

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM :	WILCOX J
PLACE:	SYDNEY
DATE :	9 JULY 1986

MINUTES OF ORDER

THE COURT ORDERS THAT:

The implementation of the deportation order made by

B Woodward as delegate

of the respondent on 10 October

1985 be stayed pending the determination of the appeal

to this Court instituted

by the appllcant on

8 July 1986

or further order to the contrary.

2. t '

The costs of this application be costs

in the appeal.

3 .

Liberty be granted

to the respondent on three

( 3 ) days'

notice to the

applicant to apply to vary or to revoke

the first order herein.

AND THE COURT DIjRECTS THAT:

The applicant

proceed

expeditiously

with all.steps

necessary to have the appeal

put in order for hearing at

an early date.

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

. .

I	.
i	I

D	LIMITED DISTRIBUTION

IN THE FEDEUL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY )

No. G.271 of 1986

)

DIVISION

GENERAL

)

BETWEEN: RODNEY RANGIMOANA RENATA

Applicant

, -

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM:

-WILCOX-J

.. -

PLACE: SYDNEY

DATE :

9 JULY 1986

EXTEMPORE REASONS FOR JUDGMENT

There is before the Court

an applicatlon pursuant to

s.44A(2) of the Administrative Appeals Tribunal Act

1975 seeking

an order staying the implementation

of a decision to which a

proceeding before the Administrative Appeals Tribunal related. The relevant decision was a decision made by Mr L B Woodward, the

delegate of the respondent Minister

for Immigration and Ethnic

L	Affairs, to deport from Australla the applicant, Rodney Rangimoana Renata.

The decision was made

on 10 October 1985 pursuant to

s.12 of the Migratlon Act 1958.

The basis of the declslon was

that Mr Renata was convicted at the District Court in Sydney

on 2

April 1982 of an offence, namely, armed robbery

for which he was

sentenced to imprisonment for

15 years and which offence was

committed on 4 December 1980.

At the time of the commission of

the offence Mr Renata was not an Australian citizen and had been

present in Australia as a permanent resident for less than	10
years.

Mr Renata sought review of the decision of the delegate

pursuant to the Administrative Appeals Tribunal Act. For the purpose of the review, the Tribunal was constituted by Mr C 3

Bannon QC, Deputy President. In a decision handed down on

June 1986 the Trlbunal afflrmed the decision made on behalf of

the Minister to deport the applicant from Australla.

On 8 July

1986, Mr Renata filed a notice of appeal to this Court trom that

decision. That appeal will go bef0re.a full bench of the Court because of the fact that the Tribunal was constituted by a presidential member. However, s.44A of the Administrative

Appeals Tribunal Act empowers either the Court

r a Judge of the

Court to make an order staying the implementation of the decision

to which the proceeding

related, "as that Court or Judge

considers appropriate for the purpose

of securing the

effectiveness of the hearing and determination of the appeal".

3 .

In an affidavlt sworn in support

of his application, Mr

Renata deposed that

he sought the assistance

of the Australian

Legal Aid Service

to prepare his appeal, but legal aid was

refused on the basis that the Service did not find sufficient

grounds to warrant the granting of legal aid.

He says that he is

;

not in a financial position

to engage private legal

representation in the matter and that

e therefore proposes to

prosecute his appeal himself. He goes on to say that if the

deportation is executed

in accordance with the advice

which he

has received from the Department

of Immigration, namely

Friday 11 July, he

would be unable

to prosecute his appeal and

would be effectively excluded

from the proceedings. Mr Renata is

a nitive of New Zealand and it is proposed that he be deported

c H-

back to New Zealand.	I -
i

It is accepted on behalf of the respondent that the test

to be applied by the Court in considering

an application under

s.44A(2) is similar to that applicable to	an application fo r an	! l
!-

interlocutory injunction

or an interim order pursuant o-

S.15 of

the Administrative Decisions (Judicial

Review) Act 1977, namely,

consideration of whether there is a serious question

of law to be

. .

argued, combined with the question	of 'the relative balance of
convenience.

In relation to balance

of convenience, there is no doubt

that this element favours the applicant. If he is excluded from	i
!

Australia there is an obvious difficulty about the prosecution

4 .

the appeal, particularly given the circumstances which currently

impel hlm to the concluslon that he will

need to represent

himself.

However, even leavlng that matter

aside, if there is a

serlous question as to the legal validity of a decision of the

Tribunal recommending an affirmation of a deportation order, it

would normally be inconvenlent to allow deportation to take place

pendlng the resolution of that question. Inevitably there must

be some disruption in the life of the applicant; and perhaps

other members of his family. In that connection, I note from the

decision of the Tribunal that the applicant is married

to an

Australian cltizen, that

he has one child and that his wife is

expecting a child In the near future.

It is obviously convenient

that any questlon of law be resolved before any deportation takes

place.

This means that the real question which

I have to decide

is whether there is a serious question regarding the legal

correctness of

the Tribunal's decision. I emphasize the words

"legal correctness" because the oniy appeal available

to this

Court in respect

of such a decision

is an appeal upon a question

of law.

It is not for thls Court to form

or express any view as

to whether the

facts have been correctly found

and, in

particular, as to

the'weight which the Tribunal might have given

to partlcular matters.

- -

5 .

. .	Three questions of law are set out in the notice of

appeal.

The first question which

is raised is:

“Whether the Tribunal erred in that

it did

decide upon the correctness of the convictions

after havlng considered-the trial transcript

and the outcome of the subsequent appeal	by
the applicant to the Court of Criminal

Appeal.

‘I

By way of explanation of

this question it should be stated

that Mr Renata

has, apparently at all.times, protested his

innocence of the charge upon which he was convicted. before the Tribunal.

In its decision the Trlbunai referred

to the limited

nature of Its function and

powers, and referred to two

y - -

-decisions of

F u l l Courts of this Court as being “high

authority” of its obligation “to accept as correct the facts

which are basic to the conviction of the applicant on

s1x

charges of robbery”. The declsions referred to establish the

principle that, in proceedings before the Tribunal for review

of a decision to deport upon

the basis of criminal

convictions, the Tribunal

is not entitled

to go behind the

convictions and to inquire for itself

as to whether an

applicant was in fact guilty of the offences for which

e was

convicted.

Upon my reading of the Tribunal's decision this was

fully understood. The declsion goes on to comment:

"In one sense this relieves

me of a heavy

burden, because the applicant vigorously

maintains hls innocence of the crimes for

which he was convicted. In another sense it

could frustrate an inquiry into possible

intermediate courses which might be open to

the Tribunal if it had the power to Inquire

into the applicant's allegations

of police

conspiracy against him."

The decision goes on

to indicate that the

Trfkmal

had, however, looked at the transcript of evldence at the

appllcant's trial, it

being

said

that

this

was done, "not

decide upon the correctness of

his conviction, but to

a	appreciate the surrounding circumstances". It is true that	,_	,.
'_

---

the decision

goes on to offer some comments about matters

which might be thought to support the view that the applicant

was in fact guilty of one or more of the offences, but

I do

not read the decision as being one in which the Tribunal

undertook the task of ascertaining

for itself the correctness

of the convictions. On the contrary, I think that the

p .

Tribunal was well aware that this

w a r n t i t s task and that

the transcript was looked at because of the applicant's

I '

protestations of innocence and to understand the nature

of the

l .

case which was put against

him.

Consequently, It seems to me

_ _

that the first ground of appeal

1s unlikely to succeed because

it is based upon an incorrect premlse.

j r

7 .

The second ground of appeal is stated in these terms:

"Whether the Tribunal erred in having given

special consideration to the fact of the

lack

of contrltion and restltutlon by the applicant

to support it's

(sic) sole reason for

affirming the Minister's decision to deport

the applicant belng the gravity of the

offences."

This ground overlaps the third

ground, which is as follows:

"Whether the Tribunal erred in that its

decision constituted a further punishment of

the applicant for not having shown any

contrition or made any restltution."

I do not thlnk that there 1s any question of the

declsion having been intended

by the Tribunal to constitute a

further punishment of the applicant

for not having shown any

contrition or made any restitution.

. In the terms in which

they are framed, there are considerable difficulties,

in my

mind, about each of grounds (2) and

( 3 ) .

However, in his

submissions to me relating to those grounds, the applicant has

developed the point which

he wishes to make

and which would

probably be better expressed by the formulation

of an

- additional or alternative ground.

Ground ( 2 ) , as framed, complains of the weight given

by the Tribunal to the lack

of contrition and of restitution.

This is not, of course, a matter which can be entertained by

thls Court, as

it does not involve a question

of law. But I

thlnk that there-is a question, which the applicant does desire to raise, as to whether in the circumstances of this

8 .

case it was correct in law to take into account to his

detriment what was sald to

be a lack of contrition

and a lack

of attempt to make restitution.

In order to

put this into context,

it is necessary to

refer to the penultimate paragraph

in the Tribunal's decision

in which the reason for the decision emerges. This paragraph

is as follows:

"The applicant's claim to

i-nxence makes it

very difficult if not impossible

for me to

evaluate his sincerity.

The gravity of the

six crimes for which the applicant was convicted and the comparitlvely (SIC) short

period of time

in which they were perpetrated,

leaves me unconvinced that

I should make a

recommendation that the Minister's decision

should be reconsldered, especially where there

has been no contrition and no attempt	tomake	-	--	-
-restitution."

I think that It

appears-plainly from that paragraph

that- the

Tribunal did not attempt to evaluate the sincerity

of the

applicant, either generally

or in relation to his claim

innocence.

This to my mind leaves a question as to

how one

may deal with the question of contrition

and restitution.

It seems to me logically difficult to take into

account adversely to an applicant a lack of contrition

if that

applicant has maintained without-inslncerity a claim that

was not in fact guilty of the relevant

offence. It would, of

course, be possible for the Tribunal to take note

of a

protestation of innocence but to say that this

wa an

inslncere

protestatlon,

designed

explain

l ck

contrition, and then to take into account adversely to an

appllcant the lack of contrition. However, until one reaches

a finding adverse to the sincerity of an applicant,

it can

hardly be to his detriment that he fails to express

contrition.

He would be in a logically absurd position in at

the one time advancing a claim-f innocence and at the same

time saying that he

was sorry to wha; he had done. The

reference to restitution poses a somewhat similar problem.

I was informed thzk the hearing before the Trlbunal

extended over two days, 19 May and 20 May 1986.

Apparently

during the hearing

on the first day the Tribunal invited the

applicant to consider overnight whether

he was prepared to

make some payment or payments to the victims of the various

robberies in respect of which he had been convicted. The

matter was raised again on the following day

and, as I

understand the position, Mr Renata informed the Tribunal that

. .

he would be prepared to consent to judgment and to make what	.-
payments he could,	But he said that, if he took this course,.

he would not be doing

so by way of restitution, because he

did

not owe those people any money; he would

be doing so in order

to improve his chance

of not-being deported from Australia.

Apparently the matter was not	followed up, either by the
applicant or by the Tribunal.

10.

There is a question in

my mind whether, upon that

history, it may fairly be said

that there has been "no attempt

to make restitution". If one means by restitution the payment

of money in circumstances in which an admission of guilt

made, then plalnly there

was no attempt to make restitution

and no offer to make restitution. But this would be

explicable on the same basis as the failure

to express

contrition, namely, a claim

of innocence.

If, on the other

hand, it was meant +hat there had been

no attempt to make

payment to those

who had suffered, then it seems to me that

the Tribunal may have overlooked the expressed willingness of

the applicant to take the steps to which I have referred.

It is not appropriate for

me to forecast the outcome

of any question of law upon the above lines, which might be

formulated and which might be argued before a Full Court. But

I am required to consider whether

or not such an argument

raises a serious question for consideration

by-a Full Court.

I am of the opinion that

it does.

I think that it is

arguable that the references

by the Tribunal to the lack of

. .

contrition and the lack	of an attempt to make restitution as	I
!

being an additlonal reason for the Tribunal's recommendation	I
I

affirming the deportation decision	inv'olved one or more errors	1
i

of law.

That is enough to justify, and in the circumstances

to require, an order in favour of the applicant. However, I

thlnk that I should o so upon terms that the applicant will

11.

proceed with the appeal expeditlously,

and I should reserve to

the respondentaeave to apply to the Court or to a

Judge for

an order revoking the order which

I am about to make

if, in

the event, the applicant does not take expeditious steps

have the matter put

in order for hearing

in the Full Court and

to obtain

an early hearing date.

I order that the implementation of the deportation

order mad-: by Mr

L B Woodward as delegate

of the respondent on

10 October 1985 be stayed pending the determination of the

appeal to this Court instit-uted by

the applicant on 8 July

1986 or further order to the contrary.

I direct that the

applicant proceed expeditlously with all steps necessary to

have the appeal put in order for hearing at

an early date. I

grant liberty to the .respondent

.onthrppdays' notice to the

applicant to apply

to vary or revoke the orders made

by me.

The costs of this application

are to be costs in the appeal.

I certify this and the ten

(10)

preceding pages to be a true copy

the Reasons for Judament of

his Honour Mr Justice Wilcox.

Associate: Y-

Date:

16 July 1986

l '

Appearance and representation

for

the

Applicant:

R R

Renata

person

' Counsel

for

the

Respondent:

MS L Bowen

Solicitors	for	the	Respondent:	Australian	Government
Solicitor

Date(s) of hearing:

9 July 1986

[1986] FCA 268

7 Sep 1986