Skaf, S.S. v Minister for Immigration Local Government and Ethnic Affairs
[1990] FCA 488
•31 AUGUST 1990
Re: SAMIRA SAID SKAF
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G236 of 1990
FED No. 488
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
HEARING
SYDNEY
#DATE 31:8:1990
Counsel for the applicant: Mr S. Burchett
Solicitors for the applicant: John Sarroff and Company
Counsel for the respondent: Mr D.M. Yates
Solicitor for the respondent: Australian Government Solicitor
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 6 March 1990 which affirmed a decision of a delegate of the Minister for Immigration, Local Government and Ethnic Affairs that the applicant, Samira Said Skaf, be deported from Australia.
The appeal, which is brought under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth), is an appeal limited to questions of law. It has been emphasised on many occasions that the jurisdiction of the Court is to review questions of law only, not questions of fact. If the decision-making body makes an error of fact, that is not a reviewable matter for the Court. There must be a matter which can be identified as an error of law before the Court can interfere.
This position has been emphasised by the recent decision of the High Court of Australia in Australian Broadcasting Tribunal v. Alan Bond and Ors (unreported 26 July 1990). In that case, Sir Anthony Mason CJ, with whose judgment Brennan J. agreed, limited challenges to findings of fact preliminary to a decision to challenge on the footing that there was a complete absence of evidence to support those facts. His Honour held that error of law in s.5(1)(f) of the Administrative Decisions Judicial Review Act 1977 (Cth) embraced the no evidence ground as it was accepted and applied in Australia before the enactment of that Act and did not embrace matters such as unreasonableness or arbitrariness in the finding of a particular matter of fact. It will, I think, in future cases, be somewhat rare in which an appeal such as the one with which we are now concerned will succeed having regard to the views expressed by Mason CJ, supported as they were by Brennan J., those two judges being in the majority in the decision.
The present case does not raise any direct questions of law. There is no particular point of construction arising out of the decision-making power. What we are left with are matters of fact which were for the tribunal of fact to decide and the exercise of discretion which again was a matter for the tribunal of fact.
In this present appeal, there were a number of grounds which were not put in argument and I will not deal with them.
The general circumstances which were considered by the Tribunal were that the applicant, who had been born in Lebanon in Tripoli in December 1958 and was a Lebanese citizen, had been married at an early age in Lebanon, had a son in Lebanon and had subsequently had a divorce when she was about 17 years of age. In 1983, she met a Mr Steve Skaf who was an Australian citizen and she married him and came to Australia in August 1984. She returned for a short time to Tripoli in the early months of 1985 and, when she returned from Tripoli on 11 April 1985, her luggage contained more than 400 grams of heroin. She was arrested and charged on three counts including a charge of importing a prohibited import and she was convicted on that charge. She was sentenced to twelve years imprisonment with a minimum term of six years. The applicant had been accompanied on the way back to Australia and had spent time in Tripoli with a Mr Hamoud. The trial judge in giving sentence said:-
"I think it is correct ... that she (Mrs Skaf), is easily led and, in the circumstances, would have some difficulty in refusing the offer that I have no doubt was made by Hammond (sic) to her. I have no doubt that he organised the acquisition of the drug in the Lebanon and that he was involved in putting it in her suitcase to her knowledge. I have no doubt she knew what she was carrying to Australia."
The applicant committed this offence of importing heroin only seven months after her arrival in Australia. By the time of her release from prison, she was separated from Mr Skaf and it appears that she has not seen him for a long time. The applicant was ordered to be deported in April 1989 and, in May 1989, at a time when she was living with a Mr Mousallem, she found that she was pregnant and she subsequently gave birth to a child, Dib.
A part of the case that was put to the Tribunal was that the applicant and Mr Mousallem wished to marry and to have their child Dib with them in Australia. Evidence was given that Mr Mousallem would not accompany the applicant to Lebanon if she were deported and it was in doubt as to what would happen to Dib, whether he would accompany the applicant or would remain in Australia.
Those were the general circumstances on which the Tribunal was called upon to review the decision on the deportation and to consider.
The finding that the applicant should be deported accorded both with the Ministerial policy which was before the Tribunal and with prior decisions of the Tribunal. As to the effect of Ministerial policy, I need refer only to Re Drake (No. 2) (1979) 2 ALD 634 and to the more recent decision of the late Hartigan J. in Re Loh (unreported 15 January 1990) when sitting as President of the Tribunal. Having looked at the Ministerial policy which was before the Tribunal, I am of the view that it accorded with that policy that the applicant should be deported and indeed the policy in that respect was not much different from earlier statements of policy that have been considered in other decisions of the Tribunal. As to earlier decisions of the Tribunal it is sufficient for me to mention a few. Re Salazar-Arbelaez (1977) 1 ALD 98 was a decision of Brennan J. when he was President of the Tribunal and the decision of Re Drake (No. 2), cited above, was again a decision of Brennan J. Two decisions of my own in which the circumstances of children who were Australian citizens had to be taken into account were Re Saverio Barbaro (1980) 3 ALD 1 and Re Nevistic (1980) 3 ALN 9. In both those cases an order for deportation was affirmed. In Re Ang (1980) 2 ALD 785 an order for deportation was affirmed in the circumstance that the deportee, who had dealt in heroin in Sydney, had a wife who was an Australian citizen and had a child in Australia.
The rationale behind those decisions is that one has to look at the nature of the crime. Dealing in or importing heroin is regarded very seriously indeed. It has been said in several of the decisions to be a crime which is abhorrent to the Australian community. One looks at the time spent in Australia before which the offence was committed and of course, in the applicant's case that was very short. One looks also at all other relevant circumstances. In the applicant's case, one of the other circumstances was that she had relatives, indeed a son, in Lebanon so that her ties with family were as much with Lebanon as they were with Australia, at least insofar as past ties were concerned.
Counsel for the applicant, Mr S. Burchett, submitted that the Tribunal did not take account of the circumstances of the offence but treated the offence as a serious offence without having regard to what were the extenuating circumstances of it. However, the Tribunal did consider the nature of the offence and set out the substance of the offence as it appeared from the remarks on sentence of the sentencing judge. The Tribunal correctly rejected the applicant's evidence that she was innocent and took note of the conviction and of the remarks of the sentencing judge.
Mr Burchett submitted that the applicant's offence was not a serious offence in the terms of the Ministerial policy and referred to words in paragraph 9 of the policy which in giving serious offences states in brackets:-
"(persons who embark on drug-related crime for financial gain show a callous disregard for insidious effects on the health and welfare of Australia's young people)"
Mr Burchett submitted that it was not shown that the applicant had undertaken this crime for financial gain. Those words in brackets do not, however, limit the overall effect of the policy. The applicant's offence was a serious offence. Heroin importation of this nature is regarded as a very serious offence and the Tribunal was correct in thinking that this offence was an offence which the policy treated as a serious one. The judgment of the seriousness of the offence and of the weight to put upon it was a matter for the Tribunal. It is not a matter which can be raised as a point of law. It is for the Tribunal to decide how it will regard the offence and in this respect I see no error of law.
Mr Burchett further submitted that the finding of the Tribunal that there was a risk of a recidivism was incorrect. On this aspect again I do not see any error of law and indeed I do not see any point of law arising, nor for that matter do I see any error of fact in the Tribunal's finding. There was evidence before the Tribunal that the applicant had a personality which was vulnerable and which therefore gave rise to a possibility of recidivism. There was also evidence that of persons with whom Mrs Skaf had associated, her husband, Mr Skaf, was in gaol having been convicted of an offence and her father had been arrested on arrival at Sydney airport and was held on a charge in Long Bay Gaol. Counsel submitted that the circumstances surrounding the applicant's father were irrelevant. But the question of recidivism must be judged having regard to questions of risk. In considering risk, one has to take into account possibilities. It was appropriate for the Tribunal to take into account that the father may have been arrested on arrival at Sydney airport for an unlawful activity and that this may be taken into account in assessing the risk of recidivism. The Tribunal was also entitled to take into account, in assessing this risk as it did, that the applicant knew more of the circumstances of her father's arrest than she was prepared to disclose to the Tribunal.
Counsel further submitted that the Tribunal took into account only the five principal matters which were listed within paragraph 27 of the Tribunal's Reasons for Decision, namely the nature of the crime, the possibility of recidivism, the contribution made by the applicant to the Australian community, the strength of the family ties in Australia, and the effect of the return to the home country on the deportee and the deportee's family. In addition to those five principal matters the Tribunal had, of course, referred to the matter of policy. Mr Burchett submitted that the Tribunal's decision did not take into account all other matters to which the policy directed attention, and counsel referred to paragraphs 6 to 15 of the policy. I do not, myself, see any matter in the policy which was not taken into account, and I cannot, indeed, see any matter in the policy that really assisted the applicant's case. It seems to me that the decision that was made accorded with Ministerial policy, and I do not think that there was any error in the reference to five principal factors.
It cannot be expected that a tribunal will expressly mention every possible factor which is relevant to the matter of deportation. In deportation the subject matter has such ambit that a tribunal could not be expected in each case to write a treatise dealing with every matter which might have an effect or might be thought to have an effect. Cases such as Re Stone (1981) 3 ALN 129 have considered the matter in detail and one can find various cases that have considered particular aspects in considerable detail, but it cannot be expected that from the general run of the Tribunal's decisions that the Tribunal should go to the trouble of dealing with matters that are mainly peripheral and of intellectual interest. It is sufficient that the Tribunal deals with the substance of the matter in a way which explains its reasons for decision.
Mr Burchett further submitted with some force that the Tribunal's reasons with respect to the effect of the deportation on Mr Mousallem and on the child Dib were somewhat brief. Mr Mousallem was, of course, the father of the child, Dib, and Dib is the applicant's child. The Tribunal found the relationship between the applicant and Mr Mousallem to be genuine and found that the applicant was really dependent on Mr Mousallem but that Mr Mousallem had been in Australia for 18 years and had four children and grandchildren in Australia and would not leave Australia if the applicant were deported.
The Tribunal found that the situation of the child, Dib, might have to be resolved by a court if there were a dispute between Mr Mousallem and the applicant. That part of the reasons was not challenged, but I turn to those aspects that were the subject of comment. In paragraph 32 the Tribunal said:-
"The fact that she has lived with an Australian citizen for 12 months is hardly sufficient to establish significant family ties in this country as the concept is understood in Ministerial policy."
This statement certainly is a surprising one. One would think that a person who had a young child in Australia and who was living with a person, the father of the child, and wished to marry him, had significant family ties. I should state that whether or not such family ties were significant family ties, as understood in Ministerial policy, would not matter. Such a matter is a relevant matter for the Tribunal to take into account and Ministerial policy cannot limit, in a subject matter such as this, the range of the factors to which attention should be given. Section 12 of the Migration Act (1958) (Cth) intends that the personal factors of the deportee will be given consideration and by giving a right of review to the Tribunal affirms that matters such as a child or a defacto husband in Australia may be significant matters to be taken into account.
The Tribunal said, so far as Mr Mousallem was concerned:-
"There will be no hardship to Mr Mousallem
if the order is carried out as
he has no intention of following the applicant."
Again, this was a substantial understatement of the effect of deportation on Mr Mousallem. If the deportation is carried out, he will either be separated from his child and the woman with whom he is now living or he will be left with a child without a mother to look after the child. If the deportation is carried out he will lose the company of the applicant with whom he has a genuine relationship and to whom he desires to be married.
Similarly, the Tribunal understated the effect of the deportation on the child, Dib. In paragraph 33 the Tribunal recited that the applicant had given evidence that she would have nowhere to go if she returned to Lebanon. The Tribunal then said, and I quote:-
"She said that there would be no
medical assistance available for Dib.
However she agreed that Dib is a healthy baby."
And then in paragraph 34 the Tribunal said:-
"If, in fact, Dib is to remain in Australia, then the present care and attention he receives from his father will continue. If he is to return with his mother, then it will be only after a court has considered this to be in Dib's best interest. In either event (return or stay) one can now be assured that it will happen only after an independent enquiry by a court has established the appropriate course in Dib's best interest, or after his parents have agreed that it would be for the best."
These passages scarcely deal, as a matter of substance, with the effect that the applicant's deportation is likely to have on the child's life. He will either go to Tripoli and lose contact with his father and live in poor conditions, or he will remain here and grow up without the care and attention of a mother.
It is fair to the Tribunal to note that the way in which the Tribunal dealt with the matter may have arisen from the way in which the case was presented to the Tribunal. The applicant's Statement of Facts and Contentions, which was before the Tribunal, gave only scant attention to the effect that the deportation would have on Mr Mousallem and the child, Dib. These matters were referred to only in subparagraphs (g) and (h) on page 4 of the four-page Statement of Facts and Contentions. So it may be that what ought to have been the principal thrust of the application was put in another way. Whether that is so or not does not matter and I have not read the transcript to ascertain whether or not it is so, I simply note the matter out of fairness to the Tribunal.
The effect of the break up with the family, and the effect of the deportation on the family by fracturing it was a matter to which the Tribunal was bound to give attention, and it was bound to do that, whatever the policy had to say about the matter. Paragraph 10 of the policy states that social ties developed after the liability for deportation arose, especially after the liability has been brought to the notice of the offender, can be discounted according to circumstances. But whatever the policy says, these things are matters which have to be given attention as a matter of substance for they are relevant matters to be taken into account. Thus, I have been concerned as to this aspect of the Tribunal's reasoning.
Moreover, the circumstances in Tripoli were given only brief attention, though it is fair to say that the evidence was also brief.
However, having read the whole of the reasons of the Tribunal I am satisfied that the Tribunal gave attention to all relevant factors. The weight to be given to the factors was a matter for the Tribunal and the manner in which it exercised its discretion was a matter for the Tribunal.
I see no error of law in the Tribunal's decision notwithstanding those aspects which seem to be a little unsatisfactory and to which I have referred. I should emphasise again out of fairness to the Tribunal that I do not regard the Tribunal's decision as a whole as a decision to which no Tribunal could reasonably come. Indeed, I regard it as being in accordance with the Ministerial policy and consistent with the general pattern of Tribunal decisions.
For these reasons, I am of the view that the appeal should be dismissed with costs and I so order.
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