Wang v Minister for Immigration & Multicultural

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FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multicultural
Affairs [2002] FCA 647

JUDICIAL REVIEW – decision by the Minister to deport a non-citizen under the Migration Act 1958 (Cth) – review of the Minister’s decision by the Administrative Appeals Tribunal - whether denial of procedural fairness by the Tribunal – whether the Tribunal ought to have given the applicant the opportunity to comment on an adverse conclusion reached by the Tribunal that was material to their decision – no statement of principle.

Migration Act 1958 (Cth), ss 200, 201
Convention relating to the Status of Refugees, article 33

Kioa v West (1985) 159 CLR 550
B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483

XIANG DONG WANG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 859 OF 2001

NORTH J
22 MAY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 859 OF 2001

BETWEEN:

XIANG DONG WANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

22 MAY 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.the appeal be listed for directions on a date to be fixed.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 859 OF 2001

BETWEEN:

XIANG DONG WANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

NORTH J

DATE:

22 MAY 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Mr Wang appeals to this Court against the decision of the Administrative Appeals Tribunal (the Tribunal) made on 25 July 2001.  The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs (as he was then titled) made on 16 September 1997 to order the deportation of Mr Wang.

    BACKGROUND

  2. Mr Wang is a national of the Peoples’ Republic of China.  He was born on 29 March 1968.  He migrated to Australia on 17 December 1985 with his parents and two sisters.  He was then seventeen and a half years of age. 

  3. Mr Wang’s mother is Chinese and his father is Russian and half Jewish.  These circumstances caused Mr Wang to have difficulties in China during his childhood.  He was teased at school regularly.  He had only three to four years schooling.  Further, there was evidence before the Tribunal that Mr Wang has an I.Q. of only seventy. 

  4. When Mr Wang arrived in Australia he fell into bad company and within a short time accumulated a considerable criminal history. 

    THE ISSUE

  5. Section 200 of the Migration Act 1958 (Cth) (the Act) empowers the Minister to order the deportation of a non-citizen in the circumstances set out in s 201. So far as relevant to this case, those circumstances are:

    “Where:

    (a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

    (b)when the offence was committed the person was a non-citizen who:

    (i)had…

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Details
Case
[2002] FCA 647
Decision Date

CaseChat Overview and Summary

Mr Wang, a Chinese national with a history of serious criminal offences in Australia, appeals against the decision of the Administrative Appeals Tribunal to affirm the Minister’s order for his deportation. Mr Wang was born in 1968 and migrated to Australia in 1985. He was convicted of multiple violent offences, including rape, and sentenced to imprisonment. The legal issue is whether the Tribunal erred in upholding the deportation order under the Migration Act. Mr Wang argues that the Tribunal should not have considered the risk of him committing murder, a matter not put to him for response. The court found that the Tribunal's consideration of the risk of Mr Wang committing murder was not naturally flowing from the known material and should have been put to him for response. This failure to allow Mr Wang an opportunity to address this adverse factor resulted in a real risk of prejudice.

The court examined the criminal history of Mr Wang, which included multiple instances of violent rape and theft. Despite these convictions, Mr Wang argued that the Tribunal erred in upholding the deportation order. The court noted that the Tribunal had considered the risk of Mr Wang re-offending and concluded that there was a low risk if he participated in a treatment program. However, the Tribunal also considered the risk that Mr Wang could commit murder, a matter not put to him for response. The court found that this consideration was not naturally flowing from the known material and should have been put to Mr Wang for response. This failure to allow Mr Wang an opportunity to address this adverse factor resulted in a real risk of prejudice. The court concluded that the Tribunal's decision was flawed and remitted the matter back for further consideration.

Orders

Orders of the court

1. the appeal be listed for directions on a date to be fixed.

Background

Background to the litigation

Mr Wang appeals to this Court against the decision of the Administrative Appeals Tribunal (the Tribunal) made on 25 July 2001. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs (as he was then titled) made on 16 September 1997 to order the deportation of Mr Wang.BACKGROUND Mr Wang is a national of the Peoples’ Republic of China. He was born on 29 March 1968. He migrated to Australia on 17 December 1985 with his parents and two sisters. He was then seventeen and a half years of age. Mr Wang’s mother is Chinese and his father is Russian and half Jewish. These circumstances caused Mr Wang to have difficulties in China during his childhood. He was teased at school regularly. He had only three to four years schooling. Further, there was evidence before the Tribunal that Mr Wang has an I.Q. of only seventy. When Mr Wang arrived in Australia he fell into bad company and within a short time accumulated a considerable criminal history. THE ISSUE Section 200 of the Migration Act 1958 (Cth) (the Act) empowers the Minister to order the deportation of a non-citizen in the circumstances set out in s 201. So far as relevant to this case, those circumstances are:“Where:(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;(b)when the offence was committed the person was a non-citizen who:(i)had been in Australia as a permanent resident:(A)for a period of less than 10 years;…(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;section 200 applies to the person.” Mr Wang does not contest that he was convicted of offences for which he has been sentenced to imprisonment for a period of not less than one year, and that, when the offences were committed, he had been in Australia as a permanent resident for a period of less than ten years. However, he contends that the Tribunal erred in law in upholding the deportation order. In order to deal with the argument it is necessary to understand the criminal history of Mr Wang as found by the Tribunal.CRIMINAL HISTORY OF MR WANG On 3 March 1986, Mr Wang entered premises in Dandenong, Victoria. He there raped a woman in her mid-twenties in her bedroom. Then he carried her out to the lounge-room and raped her again. On 17 September 1986, in New South Wales he broke into the house of Mr and Mr Cheng and stole jewellery and other property. While in the house he raped the sixteen year old daughter of Mr and Mrs Cheng. In his sentencing remarks, Studdert J described the circumstances of the offences as involving “a terrifying ordeal” for the daughter. On 26 September 1986, Mr Wang raped Ms Smith. Studdert J described the circumstances in his sentencing remarks as follows:“Miss Smith, who at the time of the offence was eighteen years of age, was assisting her father on his milk run in the early hours of 26 September 1986. She made a delivery in Baringa Close, Green Valley and was making her way back to the roadway when she was approached by the prisoner. He dragged her at knife point into a nearby park where the offence was committed.…What was done in the park was done at knife point. Miss Smith was dragged some distance into the park and thrown to the ground. Her pants and underclothing were removed and the prisoner put his penis into her vagina whilst he had the knife he was carrying against her neck. After this invasion the prisoner required Miss Smith to fit a condom on to his penis and after another attempt at vaginal intercourse the prisoner turned his victim on to her stomach, pulling her up until she was in a kneeling position and then had anal intercourse. Miss Smith was then pulled further away from Baringa Close and again the prisoner penetrated her anus once more whilst still holding the knife. The prisoner was disturbed by the arrival of Miss Smith’s father who pursued him but the prison was able to made good his escape.This was a ruthless sexual attack. …The Court of Criminal Appeal has on many occasions made it clear that the use of a knife in a sexual attack is a serious aggravating circumstance of an offence. …I can only take an extremely serious view of this particular offence.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NORTH J
Mr Wang has been in prison since 19 October 1986, and remains there. It seems that he would, but for the deportation, be due for release within the next twelve months.DECISION OF THE TRIBUNAL After setting out the details of Mr Wang’s criminal history the Tribunal recorded its general approach as follows:“It is almost superfluous for me to say that rape of a stranger in her own home is a hideous and appalling offence requiring the strongest possible denunciation and, notwithstanding Mr. Hughan’s [counsel for Mr Wang] submissions to the contrary, I am quite unable to take the view that the applicant’s sentences viewed globally were verging on the excessive. Nor can it be doubted that, without strongly ameliorating circumstances the applicant’s expulsion from Australia is plainly called for.” The Tribunal then summarised the arguments put on behalf of Mr Wang as follows:“The applicant submits that taking account of his youthfulness when the crimes were committed, the malign influence of his friends and confederates, his rehabilitation whilst in gaol, the low risk of his re-offending and the hardship both to himself and his family in Australia which his deportation would cause, the exercise of a fair discretion dictates that the application to review should succeed.” The Tribunal first considered the risk of Mr Wang re-offending. There was reference to the view of Dr Barry-Walsh, a forensic psychiatrist who provided a report to the sentencing judge in relation to the Victorian offences, that it would be “unwise and speculative” to comment on Mr Wang’s risk of re-offending. The Tribunal then referred to evidence and a report of David Anthony Ball, a registered psychologist and specialist in assessment and treatment of sex offenders. The Tribunal said:“Mr. Ball is of the opinion that provided the applicant participates in, and successfully completes, treatment over a minimum period of 9 months with the CORE Sex Offender Program the applicant would present a ‘low’ risk of re-offending. The applicant has not been accepted into any such program to the present time and an attempt was made to explain this by reference to restrictions which had been applied to him during his various periods of imprisonment rendering him ineligible to do so. A perusal of copies of his prison records (Exhibit A5) fails to disclose that he ever made application for sex offender treatment during the periods of incarceration covered by those records, and two entries (Exhibit R5 dated 18 May 1998 and R9 undated) tend to suggest that he showed little interest in sexual rehabilitation in gaol.” Mr Wang convinced Mr Ball that he was genuinely willing to address his offending behaviour. But, the Tribunal recorded, Mr Ball was cautious in attempting to forecast Mr Wang’s success because of his childhood experiences in China, his long period of incarceration, his low intelligence, and his limited employment skills and literacy training. The Tribunal then examined the evidence given by Mr Ball to the effect that Mr Wang’s sexual offending could be classified as opportunistic. The attacks, Mr Ball said, were “impulsive, typically unplanned and seen as a predatory act, controlled by more contextual factors rather than by any obvious stylised sexual fantasy”. The Tribunal observed that Mr Ball may have overlooked the fact that the Victorian offences, to which Mr Wang pleaded guilty, involved entering premises with intent to commit an offence involving unlawful and indecent assault.

Ratio Decidendi

Legal Principle Established

Established by: NORTH J

Mr Mosley drew attention to the fact that the finding was that Mr Wang could, not would, endanger the life of any future victim.CONSIDERATION The conclusion concerning the risk of Mr Wang committing murder is expressed in par 27 of the Tribunal’s reasons in a discussion about whether Mr Wang would fall within article 33 of the Refugee’s Convention. The discussion occurs after the Tribunal has considered the risk of recidivism. However, while par 27 commences with the reference to the Refugee’s Convention, the subject of discussion turns to the question of recidivism half way through the paragraph. A fair reading of the final three sentences of the paragraph is that it relates to the question of the risk of recidivism. Indeed, such discussion is consistent with the subject initially under consideration, namely, the availability of the protection of the Refugee’s Convention to Mr Wang. It is not possible to ignore the Tribunal’s comments about the risk of recidivism at this point in the decision even though the comments are perhaps out of a strict logical sequence. It is likely that the earlier conclusion expressed in par 22 of the Tribunal’s reasons that there was a risk that Mr Wang would re-offend, was informed by, and reflected, the view later expressed that Mr Wang could commit murder. It is not necessary that the Tribunal actually relied upon the risk of Mr Wang committing murder in reaching its conclusion. It is enough that there is a real risk of prejudice to Mr Wang flowing from the Tribunal considering this adverse factor without allowing Mr Wang a chance to respond to it, whether by further expert evidence or otherwise. As Brennan J said in Kioa v West (1985) 159 CLR 550 at 629:“It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par. 22 was apparently credible, relevant and damaging. The failure to give Mr. Kioa an opportunity to deal with it before making an order that Mr. and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed.” See also B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 at 336-7; and Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 at 499-501. The next question, then, is whether the conclusion that Mr Wang could commit murder flowed naturally from the known material. It was unnecessary for the Tribunal to draw to Mr Wang’s attention that it was considering the risk that he would again commit rape and, indeed, violent rape. For the Tribunal to consider that question flowed naturally from the criminal history of violent rapes committed by Mr Wang. However, for the Tribunal to consider that Mr Wang might offend by committing murder is to raise the level of seriousness of the criminal conduct to a significant degree. This is not, of course, to suggest that violent rapes are not serious. But it is to say that to consider that there is a risk of Mr Wang committing murder does not flow naturally from the circumstances, even though violent, of the rapes for which he was convicted. The suggestion that there was a risk that Mr Wang could commit murder was different enough in nature from the risk that he would commit violent rape that it should have been put to Mr Wang in order to give him the opportunity to respond to it, whether by further expert evidence or otherwise.