Rokobatini v Minister for Immigration and Multicultural Affairs

[1999] FCA 492

FEDERAL COURT OF AUSTRALIA

Rokobatini v Minister for Immigration &
Multicultural Affairs [1999] FCA 492

EPINISA TIKO ROKOBATINI v MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS

N 136 OF 1999

EMMETT J

19 APRIL 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 136 OF 1999

BETWEEN:	EPINISA TIKO ROKOBATINI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	19 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with 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	N 136 OF 1999

BETWEEN:	EPINISA TIKO ROKOBATINI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	19 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT (NO. 2)

1. I have before me an appeal from a decision of the Administrative Appeals Tribunal, pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The decision of the Tribunal was given on 19 January 1999. By that decision, the Tribunal affirmed a decision of a delegate of the Minister, made under section 200 of the Migration Act 1958 (Cth), to deport the application on grounds appearing in section 201 of the Migration Act. There is no dispute concerning the application of section 201.

2. Section 200 provides that the Minister may order the deportation of a non-citizen to whom Division 9 of the Act applies. Under section 201, section 200 applies to a person, where the person is a non-citizen, has been in Australia as a permanent resident for a period of less than 10 years and has been convicted in Australia of an offence for which he or she has been sentenced to imprisonment for not less than one year.

3. The applicant was born on 1 March 1979 in Fiji and remains a citizen of that country. The applicant came to Australia with his family on 27 April 1988.  On 27 May 1988, the applicant’s father lodged an application on behalf of himself and his family for residence status to be granted on humanitarian grounds.  The application was refused on 11 October 1988.  The applicant’s father lodged several appeals in relation to that decision, which was ultimately affirmed on 10 August 1992.

4. On 2 September 1993, the family again applied for permanent residence based on compassionate grounds, alleging that hardship would be caused to Australian citizens or permanent residents if the family was required to leave Australia.  That application for permanent residence was accepted and formal permission was granted to the family on 19 December 1995.  In that way, the applicant, who has lived in Australia from the age of 9 until his present age of about 20, was a permanent resident for only one year and three months prior to the commission of the crime that has ultimately given rise to the present proceedings.

5. Between March 1995, when he was aged 16, and August 1996, the applicant was convicted in the Children's Court of 21 offences, including larceny, breaking and entering, stealing and robbery.  For those offences, he was variously placed on probation, fined, subjected to control orders, as well as receiving periods of detention.  His last conviction led to a period of detention of seven months in the Mount Penang Juvenile Detention Centre. 

6. On 15 March 1997, the applicant was released so that he could participate in a program through the Juvenile Justice Centre in Sydney.  However, he failed to attend and two days after his release, he was involved in a major crime with a number of his associates.  On 31 October 1997, he was indicted on and pleaded guilty to four counts of robbery in company.

7. The applicant’s diminished involvement in the commission of that crime was reflected in the sentence imposed on him by Judge Johnston in the District Court.  He was sentenced to a minimum term of 18 months with an additional, unusually long term of 2 years and 6 months.  He was also sentenced to a fixed term of 12 months on each of the three remaining counts of robbery in company, which were to be served concurrently with the sentence for the first conviction.

8. The applicant made an application for parole on 19 June 1998.  His probation officer, Mr Ryan, recommended that parole not be granted.  At that stage, the applicant had already had five drug-related offences.  In evidence before the Tribunal, the applicant agreed that he had been taking heroin since the age of 17.  He also acknowledged a gambling problem and was spending between $500 and $700 a day on poker machines.  The Tribunal considered that it was clear to the probation officer that those problems and an alcohol problem, which the applicant did not admit, needed further attention before parole could be recommended.

9. The applicant made a second application for parole in September 1998.  Again, the application was refused on the basis of a report by his parole officer.  From that report the Tribunal considered that the applicant did not appear to the probation officer to have made any serious efforts to address his drug, alcohol or gambling problems.  Indeed, since the first parole report he had had two further prison offences. 

10. The applicant made a third attempt to obtain parole in October 1998. The probation officer reported in somewhat different terms. The view of the probation officer was that it was necessary for the applicant to have access to therapeutic programs, which were not available to him while he was housed in the maximum security wing. The Tribunal considered that it appears to have been the probation officer's view that the applicant should be given closely supervised parole so as to assist in his rehabilitation. However, within a few days of the applicant’s release on parole, he was placed in immigration detention pending the hearing of his application to the Tribunal for review of the decision to deport him. On 24 August 1998 the Minister’s delegate made the order pursuant to section 200 that the applicant be deported from Australia.

11. There are two grounds relied on by the applicant in the proceedings before me. The first concerns the application of section 499 of the Migration Act to the decision of the Tribunal. Section 499(1) provides as follows:

    “A person or body having functions or powers under this Act shall perform those functions and exercise those powers in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.”

12. It is common ground that a direction under section 499 was given on 21 December 1998. Clearly, that direction had no application to the decision of the delegate. The proceeding before the Tribunal was commenced on 4 September 1998 the day after delivery to the applicant of notice of the deportation order. A hearing took place before the Tribunal on 14 January 1999 and the Tribunal's decision was given on 19 January 1999.

13. In his reasons for the decision, the Deputy President did not refer to the Ministerial direction of 21 December 1998 (“the Direction”).  Rather the Deputy President referred to a Ministerial policy published by the Minister with effect from 24 December 1992 (“the Policy”). In the proceeding before me, the Minister did not contend otherwise than that the Tribunal apparently made its decision in ignorance of the existence of the Direction.

14. The first ground of appeal relied on by the applicant is that there was an error of law by reason of failure to comply with section 499 because of the failure of the Tribunal to have regard to the Direction. The second ground of appeal is, in a sense, in tension with that contention. The second ground is that the Tribunal misconstrued and misunderstood the Policy and therefore failed to take into account relevant considerations. At the time when the original notice of appeal was lodged and that ground was formulated, those advising the applicant were apparently unaware of the existence of the Direction.

15. There does appear to me to be some difficulty in contending that there was an error in misconstruing or misunderstanding the Policy in circumstances where, quite properly, the primary submission is that the Tribunal was under an obligation to exercise its power in accordance with the Direction. The Direction must be taken to have superseded the Policy, at least to the extent that there was any inconsistency between the Direction and the Policy. There would have been a contravention of section 499 by deciding the case in accordance with any part of the Policy which was inconsistent with the Direction. It appears to me that, insofar as reliance is placed on this second ground, it really is appropriate to deal with it as a ground of appeal in relation to the failure to comply with the Direction. I shall explain that observation in due course.

16. It is desirable to set out some relevant provisions of the Direction, as follows:

    “4.      The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community.

    PRIMARY CONSIDERATIONS

    5.        The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee.  In making such a decision, the decision maker should have regard to two primary considerations and a number of other considerations.  The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7).  A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

    6.        In making a decision whether or not to deport a non-citizen, there are two primary considerations:

    (a)the expectations of the Australian community;

    ………………………………

    7.        In addition, there will be other considerations that would be relevant in individual cases.  Two of the most common are:

    (a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and

    (b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.

    COMMUNITY EXPECTATIONS

    8.        It is the Government’s view that the expectations of the Australian community are a primary consideration in determining whether a potential deportee should be deported.  Decision makers should have due regard to the Government’s view in this respect.  There are two aspects to community expectations:

    (a)the expectation that the community will be protected and not put at risk; and

    (b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.

    Protection of the Australian Community

    9.        It is the Government’s view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. ……….

    10.      It is the Government’s view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection:

    (a)the seriousness and nature of the crime;

    (b)the risk of recidivism; and

    (c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

    Decision makers should have regard to the Government’s view in this regard.

    The seriousness and nature of the offence

    11.      It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

    ………………………………

    (d)armed robbery (including robbery involving the use of imitation weapons);

    ………………………………

    (l)any other crimes involving violence or the threat of violence;

    ·    Such crimes are of special concern to the welfare and safety of the Australian community.

    (m)ancillary offences in respect of any of the above offences, including:

    ………………………………

    ·    convictions for being an accessory before or after the fact in any of the above offences.

    Decision makers should have due regard to the Government’s view in this respect.

    12.      It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community.  Decision makers should have due regard to the Government’s view in this respect.

    The risk of recidivism

    13.      It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism.  Decision makers should have due regard to the Government’s view in this respect.  In particular, the following factors will be relevant to the assessment:

    (a)the person commits a further offence after having been warned previously about the risk of deportation. …

    (b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. …

    (c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

    ………………………………

    OTHER CONSIDERATIONS:

    21.      It is the Government’s view that in considering the issue of deportation other matters, although not primary considerations, will be relevant.  It is appropriate that these matters be taken into account but given less weight than the primary considerations.  These matters include:

    (a)the degree of hardship which may be suffered by the potential deportee; and

    (b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family. …

    Decision makers should have due regard to the Government’s view in this respect.

    The degree of hardship which may be suffered by the deportee

    22.      It is the Government’s view that factors to be considered here include:

    (a)whether the offender has an on-going marital or de facto relationship with an Australian citizen or an Australian resident…

    (b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government’s intention that such people will never be deported.

    (c)the degree and extent of the potential deportee’s ties with the likely country of return;

    (d)       the strength of other family, social or business ties in Australia;

    (e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and

    (f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility or additional criminal sanctions. …

    Decision makers should have due regard to the Government’s view in this respect.”

17. The applicant’s primary contention, as I have said, is that the mere fact of failure of the Tribunal to advert to the Direction is sufficient ground to set aside the Tribunal’s decision. I do not accept that contention. Section 499 requires that the Tribunal, in exercising its functions or power, must do so “in accordance with” the Direction.  The decision will not be bad unless it can be demonstrated that it was made otherwise than “in accordance with” the Direction.  That, of necessity in my view, involves an analysis of the decision and the reasons for that decision to determine whether the Tribunal has performed its functions or exercised its power otherwise than in accordance with the Direction.

18. In its reasons, the Tribunal made the following relevant observations:

    “19.     …It appears to have been Mr Ryan’s view that he should be given closely supervised parole so as to assist in his rehabilitation.  Counsel for the applicant pointed out that there had been no chance to test whether this hope could be realised because within a few days after the applicant's release on parole he was put in immigration detention pending the hearing of this application.  This submission, it seems to me, is based on a misunderstanding of the purpose and policy of deportation.  Individual rehabilitation is of relevance only insofar as it points to the extent of the risk of recidivism.  In assessing that risk, one must look at the circumstances at the time of the administrative review.  The principal consideration is the protection of Australian society, not the rehabilitation of the deportee. …”

19. The Deputy President then referred to paragraphs 7, 9, 10 and 11 of the Policy.  He then referred to the criteria which, he considered, he was called upon to follow as set out in paragraph 19 of the Policy.  The Deputy President then went on as follows:

    “23.     There can be no doubt that the crimes leading to the applicant’s 18 months head sentence were serious and are within the contemplation of those prescribed in the policy document.  There was no attempt by counsel for the applicant to argue otherwise.

    24.      It is upon the basis that there is now a diminished likelihood of re-offending that the applicant seeks to have the deportation decision set aside.

    25.      In my view, the objective facts of Mr Rokobatini’s history indicate that there is a high risk of recidivism (or to use his probation officer's words written only four months ago - a very high risk).  There has been a pattern of repeated relapses into crime.  The nature of the crimes for which the applicant has been convicted has escalated.  Notwithstanding the opportunities for rehabilitation offered to him as a juvenile offender, he has continued to follow a life of crime.  The ANZ bank robbery indeed was committed while he was on the equivalent of parole.

    26.      His behaviour in prison gives no cause for optimism.  Whilst in custody he has committed 18 offences between 8 June 1997 and 26 August 1998, which generally relate to non-acceptance of prison rules and authority. These offences include four counts of drugs in urine, using threatening language, damaging property and failing to comply with prison officers and routine.

    ………………………………

    28.      The applicant’s involvement with drugs and gambling and possibly with alcohol do not give cause for optimism for the future.  His association with fellow Fijians who were involved with him in the ANZ Bank crime cannot be ignored as a possibility or even a likelihood for the future.  One of his co-accused lives in the same suburb.  It would be naive to expect that they would not meet again if they both continued to live there after their release from prison.  It would be extremely optimistic to hope that in the light of past events no mischief might arise from that meeting.

    ………………………………

    32.      …The hard facts are that even while the applicant was giving assurances to his father and praying with his pastor, he was still re-offending in prison.  In February 1998 at an interview with an officer of the respondent, the Minister, he was informed of the possibility of deportation.  Nevertheless, he continued to re-offend even after this warning had been given.  After March 1998, he again continued to offend and, indeed, the authorities found it desirable to place him in higher security. I am compelled to conclude from the objective evidence that the risk of recidivism is high.

    33.      I am also to have regard to the applicant’s contribution to the Australian community.  That has been quite minimal.  He has not had any job since he left school at the age of 16.  On the other hand he obtained unemployment benefits for about 13 months prior to his imprisonment.

    34.      I am also to consider the strength of family or social ties in Australia.  There is no evidence of any ties in this country outside his former activities in the church when he was at school.  His parents and four siblings reside in a house at Punchbowl.  I had no evidence from any of the siblings, but it is fair to say that two of them are quite young and are still at school.  His father claimed to have a close relationship with his son and would be hurt, along with other members of the family, if he were deported.  The applicant’s mother, when interviewed, stated that she too had a close relationship with her son and, understandably, would be very upset if he were deported.  There was no evidence as to the attitude of any of the siblings to his deportation.  One of them is an older brother in regular employment…………….

    35.      Although both his father and mother would be upset if the applicant were deported, it is hard to measure the degree of hardship which would be caused to them.  Apart from emotional harm. there was no evidence of any other element of hardship.  There is certainly no evidence of any “unreasonable hardship” which the applicant would suffer.  It is true that he has been in this country since the age of 9 and that he speaks no Fijian.  Nevertheless, the evidence was that he has grandparents, uncles, aunts and relatives in Fiji.  The fact that he arrived in Australia as a minor is to be taken into account but as the Government policy makes it clear:

    ‘It is not the Government’s intention that such people should never be deported.  Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crimes, deportation should be seriously considered’.

    36.      Pastor Buli [sic] considered that Fiji is a ‘crime den’ and that sending the applicant back to Fiji would be likely to result in his involvement in further crime in that country.  In my view, however, this is an irrelevant consideration in the context of determining whether a deportation order should be enforced.  I am bound to give most weight to the need to protect Australian society. That protection would best be afforded by the affirmation of the deportation order and I will therefore affirm it.”

1. The substance of the applicant’s contention is that the Tribunal failed to have regard to the alleged detrimental effect deportation to Fiji would have on the applicant.  It was said that deportation would deprive the applicant of an opportunity of rehabilitation, being an opportunity which would remain if he were permitted to stay in Australia.  Reliance was placed on the observation made by the Deputy President in paragraph 19 that individual rehabilitation is of relevance only insofar as it points to the extent of the risk of recidivism, and the observation in paragraph 36 that the fact that sending the applicant back to Fiji would be likely to result in his involvement in further crime in that country is an irrelevant consideration in the context of determining whether a deportation order should be enforced.

2. The thrust of the argument, which as I have said was put primarily in relation to the second ground, was that rejecting those matters was tantamount to failing to have regard to the hardship which would be visited upon the applicant if he is deported to Fiji.  In the context of the second argument, reliance was placed on provisions of the Policy which it appears to me are not significantly different from the terms of the Direction.  The paragraphs relied on were as follows:

   “(2)Parliament vests in the Minister for Immigration, Local Government and Ethnic Affairs the discretion to determine whether resident non-Australian citizens who have been convicted in Australia of certain serious criminal conduct are to be removed from Australia by deportation.  In exercising that discretion the Minister is exercising the rights of the Australian community to be protected and to choose who will be permitted to remain as a permanent resident.

   ………………………………

   (7)Consistent with Government policy, most weight should be given to the need to protect Australian society.  Conversely, less weight should be given to the views of the offender and that person's family and associates, and to the possibility of adverse consequences for them of deportation.

   ………………………………..

   (9)The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/ her family.”

3. Reliance was placed on those paragraphs to support the contention that the decision to deport should involve a balancing exercise.  I did not understand counsel for the Minister to contend to the contrary.  Indeed, the Deputy President had regard to the interests of the applicant and his family.  The complaint relates to the observation by the Tribunal that the consequences of deportation to Fiji are irrelevant.  The same argument, it appears to me, could equally be advanced (and as I understand the position, they were advanced on behalf of the applicant) in relation to the application of the Direction.  That is to say, the terms of the Direction contemplate a balancing exercise between the primary considerations, on the one hand, and the other considerations which are relevant in any particular case (including the degree of hardship which may reasonably be expected to be suffered by a potential deportee), on the other hand.

4. If the decision of the Tribunal ignored hardship to the applicant, that would be a ground for interfering with the decision of the Tribunal.  However, I do not consider that the Tribunal, in the reasons which I have set out at some length above, failed to take into account the degree of hardship which may reasonably be expected to be suffered by the potential deportee.

5. There is nothing in the Direction, just as there was nothing in the Policy, to require the Tribunal to have regard specifically to the lack of opportunity for rehabilitation in Fiji.  The Direction refers expressly to the risk of recidivism in considering the primary consideration of the expectation of the Australian community.  On the other hand, the opportunity for rehabilitation is not referred to at all in that part of the Direction which deals with the question of hardship to the deportee.

6. I do not consider that the Tribunal, on a fair reading of the reasons, was saying that the possible consequences for the applicant of deportation to Fiji were to be ignored entirely.  There is the finding in paragraph 35 that there was no evidence of any “unreasonable hardship” which the applicant would suffer.  Whether the applicant, upon his return to Fiji, becomes involved in crime is a matter wholly within the control of the applicant.  Certainly, the applicant is only a young man.  Nevertheless, he has reached an age where he is, by the law of this country at least, treated as an adult capable, if he were a citizen, of voting and certainly capable of entering into legal transactions which would be binding upon him.

7. As I read the reasons of the Tribunal, the Deputy President was not saying that the possible hardship of return to Fiji is to be ignored.  The hardship of removal from Australia is a matter which, of course, had to be taken into account.  The Tribunal was, in effect, saying that it was not unreasonable, having regard to the seriousness of the crime for which the applicant was convicted, that the Australian community interest be given precedence over the possibility that he will lose an opportunity of rehabilitation here.

8. Notwithstanding that the Deputy President did not refer to the Direction, it appears to me that, on a fair reading of the Direction and the Policy, there is no relevant substantial difference between them. The significant difference is that the Direction imposes an obligation on a person performing a function or exercising power to which section 499 applies whereas the Policy, at best, was a matter which should have been taken into account by the Tribunal. I am not satisfied that the Deputy President's decision was not “in accordance with” the Direction.  In a sense, of course, that is fortuitous in the circumstances, but it is easily explained, as I have said, by the fact that the Deputy President had regard to the Policy which contains observations which are not significantly different from the Direction.

9. It also follows from what I have said that I am not satisfied that there was any misunderstanding or misinterpretation of the Policy, if that were a relevant consideration.  If the Deputy President had misinterpreted the Policy that would have probably led to the consequence that he had failed to act “in accordance with” the Direction.  I do not consider that he did.  In the circumstances, I consider that the application should be dismissed.

10. The order I make is that the application be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             19 April 1999

Counsel for the Applicant:	M.B. Smith
Solicitor for the Applicant:	Ron Kessels
Counsel for the Respondent:	G.T. Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 April 1999
Date of Judgment:	19 April 1999