Weleilakeba v Minister for Immigration and Multicultural Affairs

[2000] FCA 1803

FEDERAL COURT OF AUSTRALIA

Weleilakeba v Minister for Immigration and Multicultural Affairs [2000] FCA 1803

SUNIA WELEILAKEBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 984 of 2000

MATHEWS J
5 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 984 OF 2000

BETWEEN:	SUNIA WELEILAKEBA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL  AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	5 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1)   The application be dismissed.

2)   The applicant pay the respondent’s 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 984 OF 2000

BETWEEN:	SUNIA WELEILAKEBA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL  AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	5 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 August 2000. The Tribunal affirmed a decision of the respondent's delegate to deport the applicant, Mr Weleilakeba, from Australia under s 200 of the Migration Act1958 (Cth) (“the Act”).

2. The factual background is as follows.  Mr Weleilakeba, who was born on 7 June 1975, first came to Australia in January 1994.  In the early morning of 1 January 1996 he committed an offence which later led to a conviction on a charge of malicious wounding.  The offence was a particularly serious one, involving Mr Weleilakeba thrusting a broken bottle towards the stomach of an unarmed man outside a club.  The victim sought to defend himself with his arm.  He suffered very severe injuries to his arm, later necessitating the insertion of 38 stitches.  The injury was said to be a seriously disfiguring one. 

3. Mr Weleilakeba was charged with this offence and granted bail, but he absconded shortly afterwards.  On 20 September 1997, some 20 months later, he committed an offence which later led to a conviction on a charge of armed robbery.  On this occasion he and two others went into a liquor store where they threatened the attendant, a 62 year old woman.  He held her from behind so tightly that she had difficulty breathing, at the same time holding an implement to her neck. There was some suggestion that the implement might have been a knife, but on all the evidence it appears that it was a screwdriver.  Mr Weleilakeba and his accomplices left the shop with $433. 

4. Two weeks later, on 3 October 1997, the third and final offence took place, which later led to a conviction for attempted armed robbery.  Again, Mr Weleilakeba was accompanied by two co-offenders.  This time they went to a birth control clinic where they threatened an employee with a knife.  Mr Weleilakeba, on the evidence, was the primary assailant. They left the premises when they heard other employees approaching, and were arrested shortly afterwards.  Mr Weleilakeba was taken into custody and the sentences which were later imposed were directed to commence on that date, 3 October 1997. 

5. On 18 March 1998, Mr Weleilakeba pleaded guilty to the three offences which I have mentioned.  He was sentenced by Judge Graham of the Sydney District Court to, effectively, a minimum term of 18 months in relation to each offence, with an additional term of two years and six months, being a total sentence of imprisonment for four years.

6. The Crown appealed against the leniency of these sentences and on 19 August 1998 the Court of Criminal Appeal allowed the appeal and increased the minimum term to three years, at the same time reducing the additional term to one year.  In other words, the total sentence of four years remained the same, but the proportion of minimum term to additional term was varied by doubling the minimum term to three years.

7. On 21 October 1999, the Minister's delegate signed a deportation order under s 200 of the Act on the grounds set out in s 201.

8. On all accounts Mr Weleilakeba had a chequered time in prison.  At least, that was the finding of the Tribunal.  He successfully undertook a number of courses.  There was also evidence that he converted to Christianity.  Favourable reports were given about him.  On the other hand, his record disclosed a number of disciplinary breaches whilst in prison, some of them apparently quite serious.

9. Mr Weleilakeba sought AAT review of the delegate's decision to deport him.  On      4 July 2000, a hearing took place before a Deputy President of the Tribunal.  Mr Weleilakeba’s fiancee, Willy Ana Low, who is the mother of his daughter, and who is also of Fijian origin, gave evidence on his behalf.  As one of the major issues on this appeal relates to Ms Low's residency status at the time of the Tribunal’s hearing and decision, it is worth mentioning some of the evidence that she gave in this regard.

10. Ms Low was asked by Mr Turner, who was appearing for Mr Weleilakeba before the Tribunal, about an application for permanent residency which she had recently lodged with the Department of Immigration.  She was asked:

    “Did they give you some idea of how long it would take to be decided?‑‑‑A: Well, he has just said it will be a minimum of 20 days and a maximum of six months or something.”

    Q: “Obviously, we haven't made the 20 days, have we.  Did he give you some idea of whether he thought it would be successful?‑‑‑A: He said it would be because I've spent most of my schooling years here and the only contact I have got back home is just my brother.”

11. As it later transpired, Ms Low's residency had been granted the previous day, 3 July.  However as is obvious from the transcript, she was unaware of this when she gave her evidence.

12. On 17 August 2000, the Tribunal gave its decision affirming the decision of the Minister's delegate. The Tribunal’s decision described the three offences committed by Mr Weleilakeba and then proceeded to discuss the matters which were required to be considered under the Ministerial direction dated 21 December 1998 pursuant to s 499 of the Act.

13. The primary considerations to be considered by a decision-maker under that direction are the community expectations and the interests of any relevant child.  Under “community expectations”, as the Tribunal commented, it is necessary to take account of the expectation that the community will be protected and not be put at risk, as well as the expectation that non-citizens who are convicted of crimes that are abhorrent to the Australian community will be deported. 

14. Having described the circumstances of the offences, the Tribunal discussed Mr Weleilakeba's prison record.  It concluded that his risk of recidivism was high.  As to the nature of the offences, the Tribunal described them as “grave”, and commented that they were sufficient in themselves to warrant deportation. 

15. The Tribunal then turned to the interests of any relevant child.  In this case, there was one child, Mr Weleilakeba’s daughter, Samanunu, who was born to Ms Low on 3 May 1998 in Sydney. 

16. When Samanunu was born, Mr Weleilakeba was already in prison. Accordingly, at the time of the Tribunal's decision, Mr Weleilakeba's only contact with her had been through prison visits, which were generally conducted on a fortnightly basis, when Ms Low brought her to see Mr Weleilakeba.  With this background, the Deputy President concluded that it was probable that Mr Weleilakeba was more attached to his daughter than she to him.  The Tribunal’s decision continued:

    “As the Ministerial Direction puts it, however, the starting point for any consideration of the best interests of the child would be that the child's best interest will be served if she remains with her parents.  This observation is best understood in the context of an orthodox living relationship between the child's two parents with the child in a domestic setting.  In this case, the only home which Samanunu has known is with her single mother.  There is no reason to consider that Samanunu has received anything other than love and affection from her mother.

    Ms Low is employed in a responsible position as an advertising co-ordinator for Australian Consolidated Press.  She clearly wishes to pursue a career in Australia and does not wish to return to Fiji.  If the applicant is deported, it seems to me that the likelihood is that he will be separated from Samanunu who will stay with her mother.”

17. The Tribunal concluded this aspect of its considerations in the following terms;

    “On balance it cannot be said that the best interests of the child would be served by the deportation of her father.  Nevertheless, the ill effects which she might suffer are not as great as those which an older child might undergo.  Furthermore, her best interests cannot be viewed in the same light as those of a hypothetical child who had lived with its parents on a regular domestic basis since birth.”

18. The Tribunal’s decision then went on to deal with the secondary considerations to be taken into account under the Ministerial Direction.  First, it considered hardship to be suffered by Mr Weleilakeba in the event of his deportation.  It noted that he retained strong family ties in Fiji, but also acknowledged that hardship would be caused by his separation from Ms Low and from their daughter if, as the Tribunal considered most likely, they remained behind in Australia.

19. Secondly, the Tribunal went on to consider whether hardship would be suffered by an Australian citizen.  Because of the grounds raised in this Court it is appropriate to deal fully with the Tribunal's findings in this respect.  At paragraph 48 the Tribunal said as follows:

    “I am also to consider the degree of hardship to any Australian citizens or permanent residents including the potential deportee's family.  I have to assume at this stage that Ms Low is not a permanent resident.  I cannot assume that her application will be successful.  It is a fact that she is not an Australian citizen. 

    As the mother of the applicant's child it is inevitable that she will suffer distress if the applicant is deported.  Her concern, however, cannot be put at such a level that she would unequivocally commit herself to following him to Fiji with their daughter.  She is a bright, intelligent woman with a responsible job and hopes for a promising career.  There is no real evidence that she would sacrifice that career and incur that degree of hardship.”

20. Finally, the Tribunal concluded its decision in the following terms:

    “The nature of the applicant's crimes are such that they, alone would justify deportation to fulfil the expectation of the Australian community.  For the protection of that community, a high risk of recidivism also points to the desirability of deportation.  The degree of adverse effect on the applicant's child is, in my view, outbalanced by these other primary considerations.  The degrees of hardship to the applicant and to others which I have discussed are secondary considerations and, on balance, are much less important than the primary considerations which I have discussed.

    Having regard to these matters the decision under review should be affirmed.”

21. Mr Weleilakeba appealed to this court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Amended “grounds of appeal” were filed on his behalf on 30 October 2000. Four grounds were specified. The first and the third of these are interrelated and I shall deal with them together. These grounds are:

    “1.The fact finding process of the Tribunal was flawed in that the Tribunal:

    a)  Proceeded to decision without determining a material fact,
    b)  Did not inform itself as to a material fact

    c)  Did not take into account a material fact of which it was notified between the time of hearing and the date of Decision:

    …

    3.The Tribunal did not adequately consider hardship to Willy Anna Low as an Australian Permanent Resident in the event of the deportation of the Applicant.”

22. As I have already mentioned, the Tribunal’s hearing took place on 4 July 2000 and its decision was given some six weeks later, on 17 August 2000.  As we now know, on 3 July Ms Low's application for permanent residency had been allowed, although no one was aware of that fact at the time of the Tribunal hearing.  There is no direct evidence as to whether the Tribunal was notified of the outcome of Ms Low’s application.  Mr Jordan of counsel, who appears for the respondent today, has very fairly conceded that the respondent's solicitor was notified, before the date of the Tribunal's decision, of the fact that Ms Low's application had been approved, in terms which indicated that the Tribunal also had been informed.  Accordingly, although there is no direct evidence that the Tribunal was informed of that matter, I think I should in fairness to Mr Weleilakeba assume that it was, and to proceed on that basis. 

23. Nevertheless, it is clear from the terms of the Tribunal's decision that, if the Tribunal had been informed of the outcome of Ms Low's application for permanent residency, the Deputy President, when he wrote his decision, was not aware of this matter.

24. The question is whether in these circumstances the issue of hardship to Ms Low was adequately dealt with in the Tribunal’s decision. Major Hindle, who has spoken for Mr Weleilakeba today, says that the evidence that Ms Low would have given before the Tribunal would have been different had she realised that her application for permanent residency had been granted. In that event she would have been much more positive about her intention to remain in Australia. However it is clear from the evidence that Ms Low did give that she considered it most likely, even then, that she would remain in Australia if Mr Weleilakeba were deported. That was certainly the import of the Deputy President’s finding, quoted above at par [16]. In any event, there is no suggestion that the Tribunal was requested to reconvene its hearing and take further evidence in the light of Ms Low’s newly acquired residency status. Accordingly, the Tribunal was required to consider the matter on the basis of the evidence which had been given before it, together with the new information relating to Ms Low’s recently acquired residency status.

25. Had the Deputy President declined to consider the question of hardship to Ms Low because she lacked residency status, then an error of law would clearly have occurred, given that the Tribunal had apparently been informed, before the decision was given, that Ms Low's application had been successful.  However it is clear from the passage which I quoted earlier (in par [19]) that the Deputy President, notwithstanding his belief that Ms Low's status had not been resolved, proceeded to consider issues of hardship to her.  He did so in terms which showed he considered that Ms Low would probably remain in Australia, and that therefore the distress she would suffer would be the distress of a mother and partner left behind, rather than the distress which would follow from the disruption of her life should she follow Mr Weleilakeba to Fiji.

26. In my view, the manner in which the Deputy President dealt with the question of Ms Low was perfectly adequate, whether or not she was an Australian resident. In other words, the Deputy President’s belief that her application had been determined did not appear to have any relevant bearing on his considerations.

27. Accordingly, in my opinion, no error has been disclosed in the grounds set out in paragraphs 1 or 3 of the amended grounds of appeal.

28. The second and fourth grounds of appeal can be dealt with relatively shortly.  The second ground is:

    “The Tribunal failed to accept the evidence of Major Stan Hindle which was in the nature of the unrebutted evidence of an expert in relation to the conversion of the Applicant to the Christian faith.”

29. In fact the Tribunal did refer to Major Hindle's evidence in its decision.  It said at paragraph 23:

    “A Salvation Army Chaplain who gave evidence on his [Mr Weleilakeba’s] behalf attested to his regular attendance at services and "to the outstanding change which came into his life when he was soundly converted to Christianity".  He involves himself in prayer meetings and bible study classes.”

30. The Tribunal then went to measure against this evidence the breaches of prison discipline which appeared on Mr Weleilakeba's record. 

31. Major Hindle's submission in support of this ground is that the Tribunal did not give adequate weight to the evidence of Mr Weleilakeba's conversion to Christianity and to the fact that, once converted, a person's lifestyle changes completely. But this is a matter which goes to the Tribunal's reasoning on issues of fact, a matter with which this court cannot be concerned in an appeal under s 44 of the AAT Act. I therefore find that this ground has not been made out.

32. Finally, under the fourth ground, it is suggested that the Tribunal did not adequately consider the interests of the child in relation to the desirability of the child residing in Australia with both her parents. 

33. I have already read that section of the Tribunal's decision which dealt with the interests of Samanunu and which concluded that it was not in her interests for Mr Weleilakeba to be deported. The matters raised by Major Hindle in relation to the Tribunal's findings in this regard are also factual matters which cannot support a ground of appeal under s 44. There is nothing to suggest any error of law, in the way the Tribunal dealt with this issue.

34. It follows that none of the grounds of appeal have been made out.  Accordingly I have no choice but to dismiss the appeal to this court.

35. I dismiss the appeal and order the applicant to pay the respondent's costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             13 December 2000

Counsel for the Applicant:	The applicant appeared in person, assisted by his "friend" Major S Hindle
Solicitor for the Applicant:
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 2000
Date of Judgment:	5 December 2000