| IN TEE FEDERAL COURT OF AUSTRALIA | 1 |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| ) |
| GENERAL DIVISION |
| Between: DANNY | SIU WING TAM |
Applicant
| And : | MINISTER FOR IMMIGRATION LOCAL |
| - |
| GOVERNMENT & ETHNIC AFFAIRS |
Respondent
CORAM: Einfeld J.
PLACE: Sydney
EX-TEMPORE JUDGMENT
This is an application under the Administrative Decisions (Judicial
| Review) Act 1977 (the Judicial Review Act) f o r | an | order of review in |
| respect of the proposed deportation | of | Danny Siu Wing Tam (the |
applicant). The decision to sign the deportation order was taken by the
NSW State Director of the Department of Immigration, Local Government
| and Ethnic Affairs (the department) on | 2 November 1987. |
| robbery on, respectively, | 17 April, 25 September and | 4 October 1983. |
| The applicant is | a citizen of the People’s Republic of China (China) who |
| claims to have entered Australia | in Sydney in July 1982 as | a stowaway |
aboard a container ship which he had joined in Hong Kong. It is apparent
| that the applicant committed | a number of offences in Hong Kong, after |
which he came to Australia where he pleaded guilty to three offences of
| In the course of these criminal activities, he married | an Australian |
| citizen on | 26 July 1983. | For the offences which he committed in |
Australia, the applicant was sentenced by Judge Smythe in the District
| Court | to | a | number | of | different | sentences. | The | total | period | of |
| imprisonment provided | f o r was 12 years’ penal servitude, with a non- |
| parole period of seven years, to date from | 5 October 1983. His Honour |
| staggered the particular sentences | so as to provide for a lesser period |
of imprisonment for the earlier two offences than for the third offence
for which eight years was separately prescribed.
It appears that the applicant was subsequently granted parole to take effect from 28 July 1987. He was then serving his sentence at Cessnock
| gaol. However, on 21 July | 1987, a direction under section | 39 | of the |
| Migration Act 1966 (the Act) was served on the officer | in charge of that |
| gaol to hold the applicant | in custody or retain him in detention. On a |
| day near the end of July. the applicant was | in fact removed from |
Cessnock to the Metropolitan Remand Centre at Malabar, where he has been ever since. An application was made to Justice Foster for the release
| of | the applicant, but on | 17 | March last, his Honour refused that |
application.
| The | substantive | grounds | of | this | application | for | review | of | the |
deportation order are effectively fivefold:-
1. That the delegate erred in considering the actual charges of which the applicant was convicted
This ground in amplification is that the delegate was misled by some of the documents which he considered, particularly some of those that were
| before the | DORS | Committee in relation to an earlier application for |
refugee status by the applicant. These and other documents, it is said,
led the delegate into believing that in fact the man was convicted of
| armed robbery and not assault and rob, | or robbery itself; that he was |
persuaded that the sentences were higher than in fact.they were, or indicative of more serious charges than were actually the subjects of the pleas of guilty; and that the delegate did not appreciate the
difference between the various charges, because he was not supplied with
information which would have helped him to distinguish the penalties
| inflicted by Judge Smythe | in respect of the three offences on which he |
pleaded guilty. It was also submitted that the delegate was led to a
| belief by some of the documentation available to him that | in fact the |
applicant was also guilty of some other offences, in respect of which
the Attorney General of New South Wales decided not to file a bill of
indictment.
There is no evidence to support these arguments. It appears that the
delegate considered precisely what he was entitled and bound to
consider, namely, the offences which the applicant did commit. Even if
it were the fact that he also considered other matters, it appears from
his statement of reasons that the matters he took into account were in
| substance the correct matters. |
The delegate did describe the offences as armed robbery, but the
material available suggests that he did not give much attention to the
actual terminology of the charges but rather to their substance. The
| sentence was accurately accounted for by the delegate | in terms referring |
| to the total of | 12 years penal servitude with the correct non-parole |
| period. |
2. That the delegate misunderstood the sentences pronounced
| The thrust | or gist of this argument was that the delegate took the |
| global figure of | 12 years penal servitude against a document which |
| indicated that the maximum penalty for the relevant offence was | 14 |
years, and therefore must have considered the offences to be more
serious than they were. |
There is no material upon which any such conclusion can be drawn, but
even if it were true, it seems to me that the delegate would have been
perfectly entitled to conclude that the offences for which the man was
sentenced, and the sentences which were pronounced, including the
observations of the trial judge (which have been placed before me in
| summary form) were of considerable severity. | I have no reason to believe |
that the details, in terms of their precise division, would have made
| any difference, | or | were taken into consideration adversely to the |
| applicant. The delegate, in fact, concluded | in favour of the applicant |
that his role in these crimes was secondary. This disposes of any
| argument that | in other respects the delegate did not appreciate the |
correct position.
3 . That the delegate did not expressly take into account the applicant's rehabilitation
Primarily under this heading of rehabilitation was the applicant's
alleged adoption of the Christian faith whilst in prison, and his
adoption of community responsibility in place of the criminal life which
he had previously followed. The applicant submitted that the delegate
should have obtained the opinions of experts on the question of his
rehabilitation.
| In fact, | the | delegate | expressly | considered | the | question | of |
| rehabilitation | in giving attention to whether the applicant should be |
| granted resident status. He concluded that the applicant was not | a |
| 'reformed | character' | after | taking | into | account | in favour | of | the |
| applicant the other matters of his conversion to a life of | faith and |
communal responsibility. The delegate's rejection of the applicant's
reformed character took into account the favourable report of his
behaviour by the prison authorities, and the presumed view of the
Probation and Parole Board, as a necessary prerequisite to approving his
release, that the applicant was unlikely to offend again. The delegate
| also took into account the applicant's | own statement, the views of his |
wife and of those who were supporting him.
The delegate treated the likelihood of the applicant becoming a 'proper'
member of society as of a speculative nature. This conclusion has been
criticised by senior counsel for the applicant who argued that such an
approach was unfair and did not represent any form of reasonable
determination. It seems to me that all statements about anyone's future
life and behaviour are inherently speculative and that there were
| definite bases for the delegate in this particular case to determine |
those matters against the applicant.
It cannot be that because a number of people, however highly qualified,
| say that they believe someone is going to behave | in particular manner |
| in | the future, the matter necessarily finishes and the delegate is |
thereby bound by those views. Nor can, for example, statements by the
applicant and his wife be determinative. These are merely matters of
evidence which the delegate must weigh. The delegate is under no
obligation to call the various people before him to cross-examine them
| or | hear them put their views. The delegate must merely bona fide |
| consider them and take them into account. In this case he has done | so , |
| but has concluded against the applicant's contentions, | as he was quite |
| entitled to do. |
| In paragraph | 22 of his reasons, the delegate also lists the other |
| matters which he considered against those matters | in favour relating to |
the applicant's so-called reformed character. Some of these are very
serious:
j
| i | (a) | the serious nature | of his criminal convictions | in Australia; |
(h) the manner of his illegal entry into Australia;
| (C) his | criminal | convictions in Hong | Kong | which | have | not | been |
denied;
| (d) | the fact that these applications were only lodged after the apprehension of the applicant on criminal charges and his |
| consequent identification as a prohibited non-citizen. | |
| Senior counsel | for the applicant submits that there is a real suspicion |
| that the delegate | was influenced by a whole range | of superfluous |
| matters. He argued that the | DORS Committee, who rejected the applicant's |
claim for refugee status, proceeded on a false basis and argues further
that there were a number of irrelevant considerations taken into account
all of which amount to grossly unfair treatment of the applicant.
This argument cannot be upheld. It seems to me that all matters taken
into account by the delegate were proper matters for him to consider and
| he would have been seriously recreant | in his duty had he not done so. |
| It is true that documents of the | DORS Committee may indicate some |
misapprehension on their part of certain aspects of the matter but there
| is no suggestion that the delegate | in this case was influenced by any |
errors made. In any case, the errors were substantially overwhelmed by
| the large majority of other matters considered by the | WRS | Committee |
which have not been challenged. I see no reason to select one or two errors or possible misapprehensions as being matters which decisively influenced the delegate and reject the vast majority of other matters
which remained unchallenged.
4 . That the delegate failed to take into account the consequences of deportation
The consequences the applicant is referring to are:
| (i) the | certainty | or likelihood | of | imprisonment | upon | return | to |
China;
(ii) the possibility of execution; and even
| (iii) | | the possibility that China may not accept | him. | |
| There is little evidence to support these assertions although | I accept |
| that there is certainly | no guarantee that China | will accept his wife who |
is an Australian citizen, and who has said that she would accompany the
applicant if he were deported back there. Senior counsel for the
applicant in his usual talented and enthusiastic way has reserved his
most vigorous assault against the delegate's views under this heading.
Be has submitted that the fundamental task of the delegate which he
| totally failed to do, was to contact the Chinese Ambassador | in Canberra |
| to ascertain what the Chinese government would | or would not do with the |
applicant should he be returned. He says that the Department of Foreign
Affairs and Trade who, it might be noted, is amongst the membership of
| the DORS Committee, | would | undoubtedly | have | available | sufficient |
information to forecast, or discover, what the Chinese authorities will
do with the applicant when he returns.
| Senior counsel for the applicant put this obligation | on the delegate to |
| inform himself in this way as: |
| " ... a reasonable burden on the bureaucracy | of a civilized |
| country to inquire | of the possible consequences." |
| Be argued that what the delegate did here was | a "glib justification" of |
| what had already been determined and was not | an independent judgment but |
| an | exercise | of | what | he | described | as | a "callous | bureaucratic |
I regret being unable to see that any of these assaults are justified by
| the evidence. No leader or public servant in' | Australia would willingly |
participate in sending the applicant to his death, but the fact is that
| there is no evidence at all, other than the applicant's | ow assessment, |
| that this consequence is, | or.is likely, to result from his deportation. |
In any event, whatever be the humanitarian arguments Australia might put
| to | the | Government | concerned, | the | administration | of | Australia's |
immigration laws could never be fixed by reference to what another
| government will do | r even what it says it will do to its | own citizens. |
Australian immigration laws just cannot be determined by reference to a
| decision that may be made in some part of China | or | any of the other |
| countries from where illegal immigrants arrive | in Australia seeking |
| residency here. |
It would be highly commendable, were it possible, for Australia to
absorb every person in the world who is facing execution or persecution
| in the person's | own country but, of course, it is impossible that this |
be done. In this case the delegate did consider the whole question of
| possible hardship and persecution. | In paragraph 20(b) of his reasons, |
the delegate says that the fact that the applicant would face hardship
| and possible persecution should he return to China weighed | n favour of |
| his application for resident status. | In this respect, learned senior |
counsel for the applicant submitted that what the delegate is really
doing here is taking such matters into account and rejecting them. This
| submission is literally correct but identifies no error | of law, as the |
| delegate is not only entitled, but bound, to act | in | that way, if that |
| is the conclusion considered to be correct. |
| Counsel further submitted that | in | a document annexed to his affidavit |
and on which he was not cross-examined (these documents were tendered by
| the applicant), the delegate | is telling an untruth when he says that he |
| considered the persecution matter | in the applicant's favour. | I am not |
| prepared to reach that conclusion. | I am also not prepared to conclude in |
| this case that the | NSW State Director of the department would ignore'and |
baselessly reject a claim that the applicant may face .persecution were
he to return to China.
| I do not accept that the delegate had | an | obligation to write to the |
| Chinese Ambassador nor do | I accept that the Australian people have an |
| obligation to maintain the applicant | i Australia at the pleasure | of the |
Chinese Government while they consider whether they are going to reply
truthfully and comprehensively, if at all. This would render the
administration of the migration program and the regulation of illegal
immigrants in Australia virtually impossible. It might even do harm to
| the applicant by directing the explicit and adverse attention | of | the |
Chinese authorities to a man who might otherwise pass into China without notice.
Accepting that the applicant's fears are correct (as to possible
persecution on return to China), and even accepting at worst that such
| fears were confirmed by the Chinese Ambassador | in Canberra as being |
possible or even probable, it cannot be said that such matters would be
| completely determinative | of the matter. The consequences, however dire, |
of deportation is something a person who illegally enters Australia
undertakes voluntarily. Australia has no absolute obligation to grant
residence to such a person facing these consequences. The Judicial
| Review Act merely requires that consideration be given to them in | weighing up the decision that should be made. |
| It is not right to turn this matter, as the applicant sought to do, into an emotional argument about whether the civilized standards of the |
| Australian people would voluntarily connive | n the possible execution of | |
| someone. This is simply a question | of the person concerned facing up to | |
| the possible consequences of the course of action on which he embarked without the consent and against the laws of the Australian community. General Matters |
| There is nothing | in section 6A of the Act that would permit the | |
| maintenance of someone | in Australia, still less the granting of an entry | |
permit here, on grounds that may be described as general questions of
justice or the Australian people's concept of fairness. There is nothing |
| in section 6A of the Act to support the submission that it was open to |
the Minister to permit a person to be here if he considered it to be in
the interests of the Australian people that the particular person remain
here. In any event, to say the least, it is difficult to accede to the
argument in this case that there are overwhelmingly powerful interests |
| of the Australian people that demand the retention | in this country of | |
| the applicant | or that justice and fairness demand permanent entry for | |
| him. |
| The question of persecution may be a matter | th | would in this case be | |
| entitled to very strong weight | in suppo~ | .t of | t | :he grant of resident | |
status and, as might be expected, the delegate has indicated that he did
take it significantly into account. The question is whether the delegate |
| in some way misdirected himself in the way in which he weighed up the | |
| various matters in favour of entry against those that were | in favour of | |
| deportation. |
| I can see no such misdirection | or error of law. It was submitted that | |
section 6A. particularly subsection (l)(e) which provides a means for
non-citizens to be granted entry permits on strong compassionate or
humanitarian grounds, was irrelevant to this case although this would
appear to me to have been the only real basis on which the applicant's |
| case for residence | in Australia could have been built. It is relevant | |
| because although the applicant was not the holder of | a temporary entry | |
| permit, the practice of the department, and the evidence before me, is |
| that that would not be held against him | if the strong compassionate and | |
| humanitarian grounds existed. | A temporary entry permit would be granted | |
| in | order to enable him to qualify if the possible consequences | of | |
| deportation established the ground. | In any event, the delegate gave it | |
| deep and careful consideration. |
| For those reasons it | is my view that despite the powerful and able | |
arguments that have been advanced in support of these various matters,
they cannot succeed. |
| 5. | Section 39 of the Migration Act | 1966 | |
| The applicant also seeks | an order of release from his current custody, | |
| following the change of his detention from Cessnock gaol to the |
| Metropolitan Remand Centre | in the circumstances to which | I have already | |
| adverted. It is submitted that section | 39 (1) of the Act requires, | |
| preparatory to the detention | i custody of a deportee as referred to in | |
| that section, the arrest of that person. The submission | is that in this |
| case the applicant was not arrested because | in the events that occurred, |
| he was merely transferred by | a person or persons unknown from one place |