Renevier, G.J. v Luu, T.Q.
[1989] FCA 409
•28 JULY 1989
Re: GEORGE JOSEPH RENEVIER
And: TUONG QUANG LUU and MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT
AND ETHNIC AFFAIRS
No. QLD No. G45 of 1989
FED No. 409
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Immigration - deportation - refusal to grant permanent resident status - long-term resident - strong compassionate and humanitarian grounds - history of sexual offences - surgical castration while in prison - reasons to deport and to decline permanent resident status based on existence of real risk of recidivism - natural justice - right to be heard on possibility of recidivism - whether there was evidence on which to base finding of a real risk - whether decisions unreasonable in Wednesbury sense.
Administrative Decisions (Judicial Review) Act 1977: s. 5
Migration Act 1958: ss. 6A, 6(2), 12, 18.
HEARING
BRISBANE
#DATE 28:7:1989
Counsel for applicant: Mr. M. Foley instructed by: Goss, Downey & Carne<
Counsel for respondent: Ms. C. Holmes
instructed by: Australian Government Solicitor
ORDER
The decision refusing the applicant resident status be quashed.
The decision to deport the applicant be quashed.
The matter be remitted to the second respondent to be considered according to law.
The respondents pay the costs of and incidental to the application, to be taxed if not agreed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is an application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 for a review of a decision denying permanent resident status under the Migration Act 1958 to George Joseph Renevier, and a decision to deport him from Australia.
The decision was made by Mr Tuong Quang Luu, who is the State Director of the Department of Immigration, Local Government and Ethnic Affairs in New South Wales and delegate of the Minister of State for Immigration, local Government and Ethnic Affairs. I shall refer to the first respondent as Mr Quang; that is how he signs his name.
The decisions the subject of this application were made by Mr Quang on 17 April 1989. Mr Renevier was taken into custody on Monday, 22 May 1989 and it was the intention of the Department to deport him to New Caledonia on Friday, 26 May 1989. A successful application to stay the deportation order was made on 25 May 1989. That order has been continued pending determination of this application.
Mr Renevier was born in Vanuatu, New Caledonia on 24 March 1954. He is unmarried and is of French nationality. He arrived in Australia on lo June 1972, when he was aged 18 years. He has ever since resided in Australia. He is presently residing with his mother, his sister Mrs. Fogliani, and brother-in-law at his sister's home at 46 Young Street, Gympie. He is now aged 35 years. He is a borderline mental defective.
Mr Renevier claims that he applied for a further temporary entry permit in 1972, but no record of such an application exists, nor is there any record of the Department receiving Mr Renevier's passport as he claims to have submitted. On 11 September 1977, by the effect of s.7(4) of the Migration Act he ceased to be a prohibited immigrant. As of 2 April 1984, with the repeal of s.7(4), it appears Mr Renevier became a prohibited non-citizen.
The applicant has a series of convictions for sexual offences, increasing in severity. There are a number of charges of wilful and obscene exposure in 1972; in 1975 and 1976 offences of indecent assault on a male; in 1977, he was convicted of indecent assault of a female under the age of sixteen years, sentence in respect of which was deferred on his entering into a recognizance to be of good behaviour for three years. In 1980 he was fined in respect of two charges of forgery and two charges of uttering, and then on 5 December 1984, in the Central Criminal Court, he was sentenced to nine years hard labour in respect of a serious sexual assault on a 73 year old female neighbour. A non-parole period of six years was ordered to date from 12 June 1984. Mr Renevier's application for release on parole was considered in March 1988 and reviewed on 6 September 1988. He was released on parole on 16 September 1988.
On 1 September 1988, an application was made by a solicitor on his behalf for the grant of permanent residence in Australia. In a letter from Messrs John Bettens & Co., Solicitors, dated 1 September 1988, it was said:
"Mr Renevier's degree of retardation prevents us from taking instructions from him as to what support is available to him in Australia should he be granted residence here. We therefore relied on his sister, Ms Mary Fogliani to instruct us. As the Department is aware, Ms Fogliani and her husband Chris have offered accommodation, supervision and support to the applicant should he be paroled. The applicant's mother, Ms Georgette Lecole, lives with them and will also care for him. Apart from a half-brother, the applicant's entire family lives in Australia. This brother, Charle Lecole, lives in Noumea. He and the applicant are not close, and have not seen each other for more than 12 years. Ms Fogliani and Ms Lecole do not believe that he would be able to offer the applicant any degree of support should he be deported to Noumea.
...
We submit that the care and support offered to George by his family goes far beyond what would normally be termed 'family support'. He will be supervised daily by two relatives who are fond of him, he will be kept busy doing activities he is capable of doing and likes to do, he will not be in the heart of suburbia with little to occupy his time. For someone with his history, we believe that the life offered to him is probably as close to perfect as possible.
Conversely, should he be deported he faces loneliness, deprivation and isolation. In addition, we submit that his mother and sister will suffer hardship should he leave Australia. They are very concerned for him and would worry constantly about his fate if he is removed from them. They do not believe he would be able to care for himself in Noumea.
We submit that George Renevier's circumstances bring him within the strong humanitarian and compassionate grounds required for permanent residence in Australia, and accordingly ask that you favourably consider his application."
Section 6A provides:
"(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say - ...
(e)he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."
Section 18 provides:-
"The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act."
While the applicant was in prison in New South Wales, he was seen by Professor Steinbeck, the Professor of Endocrinology at the Prince of Wales Hospital. Mr Renevier was suffering from a congenital adreno-genital syndrome of a 21 hydroxylase deficiency type, also known as congenital adrenal hyperplasia. This condition resulted in the the secretion of large quantities of androgenic steroids, including testosterone and the development of extremely large testicles. In February 1985, Mr Renevier's testes were surgically removed. Shortly after the bilateral orchidectomy, Dr Norris of the Prison Medical Service reported to the Department:
"He suffers with congenital adrenal hyperplasia and is borderline mentally defective. However it is unclear whether his sexual problem is a result of his abnormality or the result of his social upbringing, low intelligence and personality problems.
As such it is not possible to say whether any future or present medical treatment would be effective in altering his sexual behaviour. His recent orchidectomy was done purely at his request for cosmetic reasons and comfort."
Officers of the Department of Immigration interviewed Mr Renevier on the 9 January 1985 and on 26 August 1987. It is to be noted that no Departmental officer interviewed Mr Renevier subsequent to his application for permanent resident status and prior to the decisions made on 17 April 1989 to deport him.
The applicant's mother and sister were interviewed by officers of the Department on 17 January 1985 and 26 February 1988. In the course of those interviews, it was indicated that each of them opposed deportation because he would not receive the same level of medical treatment, that he would "most likely end up in a psychiatric hospital at best and gaol at worst" and that there were no remaining close relatives overseas to look after him. It was said that as long as he continued with his medication there would be no problem with further offences, and that his only problem was his slight retardation and that after his release from prison he would be supervised by someone at all times.
On 12 January 1988, Dr Robert Lewin, the Registrar of Forensic Psychiatry at Parramatta Gaol wrote to the Probation and Parole Service concerning Mr Renevier. After outlining the history of Mr Renevier and noting that he had been in prison until then for about four years, Dr Lewin said:
"During the course of this term of imprisonment a number of fundamental changes have occurred. Firstly, we are aware that he suffers from an endocrine disease called Congenital Adrenal Hyperplasia (21-Hydroxylase Deficiency). This condition, which has been present since birth resulted in abnormal hormone secretion and in enlarged testes. During the course of this term of imprisonment the testes were surgically removed. From the time of the operation in 1985, he reports marked changes in his sexual behaviour. Firstly he reports the cessation of sexual fantasy material, he is also unable to obtain an erection either by the use of imagery or by masturbation. He tells me that he has also ceased experiencing spontaneous sexual thoughts or impulses of a deviant nature. This change has been consistent and maintained over a prolonged period of time.
The critical question in this regard is whether the changes noted above are attributable to his operation or perhaps due to his imprisonment. I obtained the opinion of an Endocrinologist, Dr Calligeros at Price (sic) of Wales Hospital. He informs me that the operation Mr Renevier underwent is likely to lead to a complete suppression of the production of the male sex hormone, Testosterone. However, such a reduction in hormone does not lead to a complete cessation of sexual behaviour in a predictable manner.
I have discussed this sort of case in general terms with senior colleagues, who are generally of the opinion that a significant reduction in drive to re-offend can be expected, but that of course, it is not possible to predict the future behaviour of an offender in such circumstances. Mr Renevier has been commenced on hormonal treatment, as advised by Dr Calligeros, and in general terms, I would support his release on strict conditions. These would include supervised accommodation and psychiatric follow-up in competent hands."
A social history report of 27 January 1988 noted that he had generally performed satisfactorily whilst in gaol, but said that despite the positive nature of Dr Lewin's report, it should be noted that he had been named by another prisoner as the person responsible for his sexual assault, and another prisoner named Mr Renevier as having requested sexual favours from him. It was said that:
"In the light of these events one must question whether Mr Renevier's sexual drive is so reduced that if he were to be released into the community he would pose little threat. It would therefore be imperative that Mr Renevier receive ongoing psychiatric and psychological counselling in the event of his release from prison."
The reference to these two incidents is important because the Probation Officer concluded:
"Mr Renevier is a dull inarticulate man with a long history of sexual offences and other behavioural problems that seem in part attributable to his physical problems and personality disorder. It is noted that while surgical intervention has possibly assisted in controlling his behaviour, it is considered that given the right circumstances Mr Renevier could continue to exhibit violent and dangerous behaviour as noted in this report. Deportation of this offender is therefore considered an option as one could not, as Dr Lewin noted 'predict the future behaviour of an offender in such circumstances'."
On 26 August 1988, an officer in the Probation and Parole Service advised that he was unaware of any sexual misbehaviour in prison causing parole to be deferred, and that no charges had been laid against him. He indicated that parole was now likely because he would be under the supervision of his family in Gympie, Queensland, he would be supervised by Probation and Parole in Queensland and psychiatrists in Queensland had been arranged to care for him.
On 7 October 1988, that is, after Mr Renevier had been released on parole, a letter from the French Consulate-General to the Department advised, in part:
"Should a 'Deportation Order' be made out with regards to Mr RENVEVIER, it would be in his best interests to return to New Caledonia rather than to France as he has never lived there nor does he have close relatives there. Furthermore, in metropolitan France, he would not be entitled to unemployment benefits nor to Social Security benifits (sic). However, in New Caledonia, the Social Security Services would offer him every assistance.
I have made enquiries with the French Social Worker regarding Mr RENVEVIER's state of health and the illness which he is suffering from. She assured me that Mr RENVEVIER would have no problems obtaining treatment, should the need arise, and that the hospitals in Noumea have the necessary equipment to treat cases such as his."
A report dated 16 January 1989 was prepared by Mr. Howard, a Departmental officer of the Criminal Deportation Unit, Northern Region. After referring to the matters set out above, the report indicates that the only further inquiries that were made in respect of the applicant's application for permanent resident status was a telephone inquiry to an officer of the Queensland Department of Corrective Services supervising Mr Renevier's parole in Gympie. That report indicated that Mr Renevier was reporting regularly; regularly attending psychiatric consultation; that he had solid family support; that he was not employed but was engaged in the construction of the family home and that the officer perceived no problems with Mr Renevier's management. The report of Mr Howard indicated that Mr Renevier fulfilled the policy for the grant of resident status under s.6A(1)(e), he being the sole remaining relative not resident in Australia of his family.
The conclusion of the officer was:
"While compassionate circumstances exist in Mr Renevier's case, namely, his long stay in Australia, the presence of his family here and his reduced ability to care for himself due to his mild mental retardation, it is submitted that these do not outweigh the likelihood of recidivism, the gravity of his offences or his prolonged illegal presence in Australia. It should also be noted that Mr Renevier cannot meet the character requirements for the grant of resident status as set out in Chapter 5 of GORSH and there are not sufficiently strong grounds in this case to warrant the waiving of the normal policy requirements. In addition it should be noted that it is unlikely that Mr Renevier can meet the health requirements for the grant of resident status as set out in Chapter 6 of GORSH. It is submitted that Mr Renevier's continued presence in Australia represents an unacceptable level of risk to the Australian community; in cases such as this one the safety of those legally entitled to remain in Australia must be paramount."
Mr Howard had earlier noted:
"Evidence submitted to this department in the form of Prison Medical Reports, a Prison Report and a Social History report indicate that there is a strong likelihood that as a result of his operation and the continuing course of medication he is unlikely to re-offend; this is strengthened by the support that his family are providing since his release and the fact that he is living in a rural area away from concentrations of population, which may reduce the chance of recidivism."
Mr Howard's recommendation that the grant of resident status be rejected and a deportation order be made is dated 16 January 1989. There is a file note by the Regional Director agreeing with that recommendation dated 12 April 1989. The deportation order, under the hand of Mr. Quang as the delegate of the Minister for Immigration issued on 17 April 1989.
The application to review the decisions was filed on 25 May 1989, and on that day, Mr. Renevier's solicitors requested reasons for the decisions. These were supplied on 2 June 1989. In those reasons, the first respondent took into account comments made by Mr Renevier to a Departmental officer on 26 August 1987. In particular, Mr. Quang referred to a statement of Mr. Renevier at that time, which, as recorded by the Departmental officer, was to the effect that he:-
"Wishes to emphasise that since operation has no sex drive (was given a course of injections for one month plus is still on medication since operation). Cannot have an erection. Says pornographic videos sometimes shown in prison havs (sic) no effect. Believes will never re-offend. N.B. States specifically that had operation to 'keep out of trouble'."
Concerning the two incidents of sexual conduct in prison, which had prompted the caution in the social history report, Mr Quang said:
"These allegations if substantiated, would have tended to contradict the account given by the applicant to Dr Lewin and to the Departmental officer at interview in August, 1987; however, the allegations do not appear to have been substantiated, no charges were laid against the Applicant, and his release on parole was not delayed as a result of them, and I therefore took no account of these allegations in reaching my decision."
Mr Quang said:
"In deciding the Applicant's request for permanent residence I accepted that there were strong compassionate or humanitarian grounds for his being allowed to remain in Australia. I accepted that he satisfied policy as the 'sole remaining relative' because he normally resided in Australia and had had little contact with his half brother in Noumea. In making this finding I also accepted that the Applicant would suffer significant hardship in Noumea where he would be without the support or care of his sister and mother. I accepted that the Applicant would have difficulty in caring for himself and was unlikely to receive support from his half brother. The Applicant has also resided in Australia since 1972 and the hardship caused by his not being allowed to remain in Australia would also be suffered by his mother and sister. This is evident from their continuing support towards the Applicant which is commendable."
He then continued:
"Having decided that strong compassionate or humanitarian grounds existed in the Applicant's case, I decided whether in the exercise of my discretion under s.6(2) of the Act, to grant the Applicant permanent residence. I decided that this discretion ought not be exercised in his favour, taking into account the need for community protection from criminal behaviour."
He said:
"I considered that the medical reports provided evidence that the operation for removal of the tests (sic) undergone by the applicant and the medication which he is taking were likely to cause a significant reduction in the risk of his commiting further sexual offences, but that this risk had not been completely eliminated and a real risk of recidivism remains. While taking account of his stable family support and his satisfactory record since release on parole, I considered that the remaining risk, albeit reduced of recidivism, was unacceptable to the Australian community."
He later said:
"In assessing the interests of Australian society, I also paid regard to the compassionate interests of Society, and the community's interests in the human rights of the individual. I found the Applicant's case extremely difficult to decide and found that it involved complex and competing human needs and social interests. I decided that the interests of the protection of Australian society ought to be given due weight."
He also said:
"I placed little weight on the fact of the Applicant's illegal residence in Australia, given his reduced mental ability and that between 1977 and 1984 he was legally in Australia and from 1984 to his release in 1988 he was in prison for his latest offence."
He concluded his reasons by saying:
"I decided that the factors in favour of the Applicant being permitted to remain in Australia did not outweigh the factors (sic) in favour of deportation. I decided that in the circumstances the interests of the Australian community, by the removal of the risk of the Applicant re-offending outweighed the hardship that would be suffered by him and his family."
It is to be noted that the report by Mr Howard was to the effect that the compassionate circumstances did not outweigh "the likelihood of recidivism, the gravity of his offences or his prolonged illegal presence in Australia" (my emphasis). The basis of Mr. Howard's recommendation is to be contrasted with the narrow ground said by Mr. Quang to be the reason for his decisions.
Mr Quang's reasons, given at a time when his order for the deportation of Mr Renevier had been stayed, takes care to be based only on defensible factual circumstances. Any reliance on unsubstantiated allegations is disclaimed. Instead of a finding of a "likelihood of recidivism", Mr. Quang concluded that "the risks of committing further sexual offences had not been completely eliminated and a real risk of recidivism remains." While noting that strong compassionate or humanitarian grounds exist, finding the case "extremely difficult to decide" and placing little weight on Mr Renevier's illegal residence in Australia, he concluded the "real risk of recidivism outweighed the hardship that would be suffered by him and his family."
The application for an order of review was based on the following grounds:
"1. A breach of the rules of natural justice occurred in connection with the making of the decision in that:-
(a) That the adverse proposition that the Applicant was likely to re-offend was never put to the Applicant; and
(b) That the Applicant was not given the opportunity to respond to the allegation that he was 'unpredictable';
(c) That the adverse proposition of the Applicant's 'prolonged illegal presence in Australia' was not put to him;
(d) That the applicant was not given an opportunity to respond to evidence as to a risk of recidivism, which evidence was adverse to his application for resident status.
2. That there was no evidence or other material to justify the making of the decision, in that the person who made the decision based the decision on the existence of a particular fact, namely the likelihood of the Applicant's recidivism and that fact did not exist.
3. That the making of the decision was an improper exercise of a power in that it was so unreasonable that no reasonable person could have so exercised the power.
4. That the making of the decision was an improper exercise of a power through failing to take a relevant consideration into account, namely the Applicant's inability to care for himself in New Caledonia.
5. That the making of the decision was an improper exercise of the power under Sub-Section 6(2) of the Migration Act 1958, through taking into account an irrelevant consideration, namely, the need for community protection from criminal behaviour."
These grounds, except 1(d) and 5, were filed after the contents of Mr. Howard's report were known to the solicitors for the applicant, but before reasons were given by Mr. Quang. Grounds 1(d) and 5 were added after those reasons were made available.
The social history report of 27 January 1988 seems to accept that there were episodes of sexual misbehaviour in prison. The conclusion of that report is:
"... it is considered that given the right circumstances Mr Renevier could continue to exhibit violent and dangerous behaviour as noted in this report."
(my emphasis)
This material was never put to Mr Renevier. It is difficult to avoid the conclusion that that material played some part in the conclusion by Mr Howard that there was a "likelihood of recidivism". Mr Howard's view was expressed in these terms:
"In cases such as this one the safety of those legally entitled to remain in Australia must be paramount."
I simply note that there is no statutory basis for the view implicit in this statement, that of all the considerations relevant to a decision to grant permanent resident status, the risk of recidivism , however minimal that risk might be, is of more importance than all the others.
The reasons given by Mr Quang indicate that the only significant consideration countering the strong compassionate or humanitarian grounds in favour of the grant of resident status was that there was a real risk of recidivism in Mr Renevier. The evidence supporting the conclusion that there was such a risk is the fact of the serious offence in 1983, as well as the applicant's previous sexual and criminal history and the report of Dr Lewin. Mr Quang specifically disavows any reliance on the unsubstantiated assertions in the social history report, which it seems played some part in the conclusion by the recommending that there was a likelihood of recidivism. Dr Lewin is a Registrar in Forensic Psychiatry. Dr Lewin reports a marked change in the sexual behaviour of the applicant after the surgical removal of his testes. The source of his information is the applicant himself, but he speaks of inquiries he made of an endocrinologist and other senior colleagues. He reflects the general opinion that a significant reduction in drive to reoffend can be expected.
In my opinion, where he said "of course, it is not possible to predict the future of an offender in such circumstances", he is merely expressing the view that nothing is certain in this life. His report, in my view, gives no support for a conclusion that there is in Mr Renevier, a real risk of recidivism or that he was predicting that Mr Renevier might well reoffend.
In Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321, Mason J. asked at p 348:
"But what does procedural fairness entail in its application to the exercise of the discretionary power conferred by s.18? It would be going too far to say that fairness requires that in all cases in which a deporation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made. ... But if, in fact, the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter (Re HK (An Infant) (1967) 2 QB 617). ... In this respect, recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI, supra, is one illustration: Cole v. Cunningham (1983) 49 ALR 123, is another, as are R. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida (1970) 2 QB 417 at 431; and Daganayasi v. Minister of Immigration (1980) 2 NZLR 130."
It seems to me, in the circumstances of this case, that the matter of the risk of recidivism was so crucial, the material before the decision-maker on this aspect so sparse and from sources lacking the necessary medical and psychiatric expertise in this area, that procedural fairness called for Mr Renevier to be given the opportunity of putting material relevant to that question to the decision-maker prior to the making of the relevant decisions.
Such an opportunity would not have been meaningless.
I permitted evidence to be led from Dr Peter Mulholland, a psychiatrist, who interviewed Mr Renevier on 14 June 1989 and, within the time constraints that applied, provided a detailed report. His opinion was expressed at the end of the report in these terms:
"In summary; on the information available to me it would appear that Mr Renevier was, by virtue of probably his Congenital Adrenal Hyperplasia and possibly his abnormal personality, a sexual menace. The treatment in the form of surgical removal of his testes plus hormone therapy would appear to have completely changed his sex drive such that his former excessive sexual drive has now disappeared. However, it is difficult, especially in the limited time that I have had to consider and investigate this case, to be absolutely sure. However, on the basis of the information that I have available I would regard the chance of further offending behavior to be minimal."
I also received a report from Dr Donald A. Perry-Keene, a specialist endocrinologist. Dr Perry-Keene did not see Mr Renevier, but had access to a considerable body of reports, including a report of Mr Renevier's treating psychiatrist, Dr S. Eckersley, as well as telephone conversations with Dr D. Calligeros and Professor A. Steinbeck. In the course of his report, Dr Perry-Keene said:
"With improved social care and control under the guidance of his family members, important in one who is said to be mentally defective (at least to a degree), the continuity of appropriate therapy under medical guidance is more likely - that is, compliance is better assured."
He commented with respect to the sexuality of the applicant:
"By significantly reducing the male hormone levels (and in the case of castration one would expect a male residual androgen production to be that similar to the low levels seen in a female) one would expect a major reduction in libido (sex drive) and performance (potency). While male potency (ability to achieve an erection) is not totally obviated by castration, the overall effects of depletion of androgen should be very significant.
An aspect in Mr Renevier's case, of course, is the ability to produce androgen by the adrenals which can be controlled chemically by appropriate drug therapy, so compliance in this aspect becomes important."
He stated:
"It is not possible to give any scientifically based estimation of the degree of reduction of risk of re-offence."
However, from an endocrinal point of view, he said:
"Providing drug therapy compliance can be assured, the risk of disturbed sexuality, or indeed normal male sexuality, can be expected to be significantly reduced, though not totally obviated."
In my opinion, the applicant was not accorded procedural fairness in that he was not given a chance properly to respond to the psychological and medical evidence concerning a possible risk of recidivism. The interview by a Departmental officer on 26 August 1987 was not, in my opinion, sufficient to meet the requirements of procedural fairness.
The exercise by the applicant of a right to be heard on any risk of recidivism is not a hollow right as the medical evidence relevant to the question of recidivism, to which reference has already been made, might have been furnished to the decision-maker and might well have had a significant influence on any decision.
The risk of recidivism is clearly not a matter for precise quantification. In Barbaro v. Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690, the Full Court of the Federal Court (Fox, Blackburn and Lockhart JJ.) said, at 691:
"In many cases the mere fact of the commission of a serious crime is likely to give rise to a question whether the person concerned may commit the same or another crime in the future, and thus be a 'danger to Australia'. In our view, the Minister is in law entitled to make an order, and the Tribunal is in law entitled to affirm it, if, a serious offence having been committed, there is a basis for concluding that there is some risk that the same or another serious offence will be committed in the future."
The Tribunal in that case had said:
"If I were satisfied that the crime was an isolated one unconnected with other criminal activity and that the risk of recidivism was low, I would probably decide that the applicant should not be deported."
The Full Court said of that passage:
"... the commission of a crime to which s.12 of the Migration Act refers, combined with a low risk of recidivism is not necessarily, or usually, to be taken as a sufficient basis for a deportation order, but this is a matter for the judgment of the Minister, and, on review, of the Tribunal. A wide range of circumstances will normally be taken into account."
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129, Davies J. said at N133 of the nature of the task of the decision-maker, when considering this question:
"Although the science of recidivism is an imprecise one, the task of assessing the prospects of future harm to Australia should the criminal remain occupies much of the Tribunal's attention in deportation reviews. The Tribunal gives attention to statistics on recidivism to the extent that they are available and expects that persons appearing for the parties will have considered what are the most relevant statistics currently available. (my emphasis)
In the past history of most of the criminals considered for deportation, that is to say, criminals who have committed relatively serious crimes, personality defects, emotional or intellectual immaturity, lack of control or like matters can be identified. It is for this reason that in some types of crimes, for example, the crime of break, enter and steal, the rate of recidivism is relatively high. Thus the Tribunal finds little assistance in simplistic evidence from an applicant that he will not offend again. The task of the Tribunal is to identify the factors which led to the commission of the crime, to judge the effect of the period of incarceration upon the criminal and to assess the risk of recidivism accordingly. Having made its assessment of the risk of recidivism in a particular case, the Tribunal may find it necessary to take into account the fact that the techniques of prediction are clumsy and that the assessment of probabilities may be wrong.
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again. See Re Hood (1977), 1 ALN No 5, Re Tcherchian (1978), 1 ALN No 20, Re Botic (1978), 2 ALN No 3, Re Seljankovski (1978), 2 ALN No 43, Re Bio (1979), 2 ALN No 48, Re Smithers & Manson
(1979), 2 ALN No 51, Re Nardella (1979), 2 ALN No
55. And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm. See Re Becker (1977), 1 ALD 158, Re Gemayel
(1978), 2 ALN No 5."
In my opinion, on the material before the first respondent, it was not open to him to conclude that there was a real risk of a recidivism. It is not able to be said of any person that he will never offend again, but the quite striking factual circumstances of this case, in my opinion, lead to the conclusion that to say that in Mr Renevier there was a real risk of recidivism was a conclusion that the material before Mr Quang did not justify.
Even if I be wrong in that aspect of the matter, and Mr Quang was entitled to conclude, on the material before him, that there was a real risk of recidivism, to conclude that that consideration outweighed the strong compassionate or humanitarian grounds that the decision-maker properly accepted existed in this case was so unreasonable an exercise of the discretion conferred by s.18 that it cannot stand. On the one hand, any risk of recidivism is hypothetical and minimal at best. On the other hand, every other consideration overwhelmingly points in the direction of his continued residence in Australia. The length and strength of his ties to Australia, the absence of any ties overseas, the hardship his deportation would cause to him and his family in Australia, the lack of personal prospects for him in New Caledonia without the support of his caring family, and Australia's obligations as a member of the civilised community of nations to exercise compassion, as well as self interest in the exercise of its immigration policies, all lead me to the view that to order deportation in these circumstances is unreasonable in the Wednesbury sense.
Finally, it was submitted that the making of the decision to deport was an improper exercise of the power under s.6(2) of the Migration Act 1958. It was submitted that the decision-maker decided against exercising his power to grant an entry permit under s.6(2) of the Migration Act as he took into account "the need for community protection from criminal behaviour". It was said that s.12 of the Migration Act 1958 was the source of power for the Minister to order the deportation of persons convicted of crime and that such persons had a right under s.66E of the Migration Act to make application to the Administrative Appeals Tribunal for review of decisions of the Minister, except in the case of prohibited non-citizens. It was argued that, as the Act provided a specific mechanism for deportation for crime, to take into account the need for community protection from criminal behaviour was an improper exercise of the discretion under s.6(2) that would circumvent the established criminal deportation procedure under s.12.
I do not accept this submission. In my opinion, the existence of the statutory scheme based on s.12 of the Act in respect of persons convicted of crime does not mean that consideration of the community's need for protection from criminal behaviour might not be a relevant factor in the exercise of the discretion under s.6(2).
For the reasons set out above, I set aside the decisions under review. I order that the decision refusing resident status be quashed and the decision to deport the applicant be quashed. I order that the matter be remitted to the second respondent to be considered according to law. I order the respondents to pay the costs of and incidental to the application, to be taxed if not agreed.
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