FEDERAL COURT OF AUSTRALIA

Van Cuong Nguyen v Minister for Immigration & Multicultural Affairs [No 2] [2000]  FCA 225

MIGRATION – whether lack of legal representation constitutes denial of natural justice in administrative appeals – whether General Direction - Criminal Deportations - No 9 has application to person who entered Australia as a refugee – whether Administrative Appeals Tribunal (the “Tribunal”) adequately assessed danger posed to Australian community – whether Tribunal entitled to conclude that applicant’s involvement in crime was not unpremeditated and naïve – whether applicant’s lack of candour irrelevant to likelihood of rehabilitation – whether Tribunal’s conclusion regarding recidivism was open to it – approach to be taken to question of whether ‘particularly serious crime’

Migration Act 1958 (Cth), s 499

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, Article 33

General Direction – Criminal Deportation – No. 9

Dietrich v The Queen (1992) 177 CLR 292, referred to

Vo Tuan Kiet v Minister for Immigration and Multicultural Affairs (Wilcox J, 5 June 1998, unreported)

Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605, followed

A v Minister for Immigration and Multicultural Affairs [1999] FCA 227, cited

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, cited

The Queen v District Court; ex parte White (1966) 116 CLR 644, cited

VAN CUONG NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1003 of 1999

BRANSON J

SYDNEY

7 MARCH 2000

THE COURT ORDERS THAT:

1.         The decision of the Administrative Appeals Tribunal be affirmed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant (“Mr Nguyen”) has appealed from a decision of the Administrative Appeals Tribunal (“the Tribunal”) whereby the Tribunal affirmed a decision of the respondent (“the Minister”) by his delegate to deport Mr Nguyen.  An “appeal” to this Court from a decision of the Tribunal is limited to questions of law (Administrative Appeals Tribunal Act 1975 (Cth) s 44).

2                     Mr Nguyen, a citizen of Vietnam, arrived in Australia on 30 July 1993.  His age on his arrival in Australia was 22 years 9 months.  He held a class 200 (Refugee) visa issued under the Indo Chinese Refugee Program.  He became a permanent resident of Australia on his arrival.  He has not left Australia since that time.

3                     On 30 May 1997, following a plea of guilty, Mr Nguyen was convicted of supplying a commercial quantity of heroin and was sentenced to a minimum term of three years imprisonment with an additional term of two years.  On 24 June 1998, a delegate of the Minister made the order that Mr Nguyen be deported from Australia.  Mr Nguyen acknowledged receipt of a copy of the deportation order and of a letter providing him with information relating to the order on 22 July 1998.

4                     I have concluded that the decision of the Tribunal to affirm the decision of the delegate of the Minister should itself be affirmed for the reasons set out below.

QUESTIONS OF LAW

5                     The notice of appeal identifies the questions of law raised in the “appeal” as follows:

“(a)     Whether the Applicant was afforded natural justice in the presentation of his case to the Tribunal;

(b)               Whether the Tribunal erred in law in interpreting the weight to be given to the Policy Direction?

(c)               Whether the Tribunal erred in law in not determining for itself the weight to be given to the various factors involved in assessing the danger, or otherwise, posed to the Australian community by the Applicant;

(d)               Whether on the evidence before the Tribunal it was open to the Tribunal to find that the Applicant’s involvement in the offence for which he was convicted was indicative of prior involvement in heroin trafficking;

(e)               Whether on the evidence before the Tribunal it was open to the Tribunal to find that the Applicant’s alleged lack of candour affected his prospects of rehabilitation;

(f)                Whether on the evidence before the Tribunal it was open to the Tribunal to find that the Applicant’s chances of recidivism were in the moderate range;

(g)               Whether the Tribunal erred in law in finding that Article 33(2) of the Convention Relating to the Status of Refugees applied to the Applicant;

(h)               Whether the Tribunal erred in law in not considering whether the Applicant could claim the status of a refugee according to the provisions of Article 1C(5) of the Convention Relating to the Status of Refugees.”

CONSIDERATION

Natural Justice

6                     The only basis upon which it was contended that Mr Nguyen was denied natural justice in the presentation of his case was that he was not provided with legal assistance.  The failure to provide him with legal assistance, it was argued, was contrary to the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292.

7                     The same argument was advanced before Wilcox J in Vo Tuan Kiet v Minister for Immigration and Multicultural Affairs (Wilcox J, 5 June 1998, unreported).  His Honour concluded that the principle espoused in Dietrich’s case did not have any application to civil litigation or to administrative appeals.  It would not be appropriate for me to depart from his Honour’s conclusion unless I were satisfied that it was plainly wrong (Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627 and the cases there cited).  I am not so satisfied.  On the contrary, I regard his Honour’s view as correct.  The contention that Mr Nguyen was denied natural justice in the presentation of his case is rejected.

Policy Direction

8                     The written submissions of the applicant assert, in effect, that the General Direction – Criminal Deportation – No. 9 (“the General Direction”) issued by the Minister under s 499 of the Migration Act 1958 (Cth) (“the Act”) has no application to a person who entered Australia as a refugee because such a person is to be dealt with purely under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Refugees Convention”).  This submission was not pressed orally.  I reject it.  It is contrary not only to the terms of Division 9 of the Act but also to Full Court authority (see, for example, A v Minister for Immigration and Multicultural Affairs [1999] FCA 227).

Weight Given to Various Factors

9                     It was contended on behalf of Mr Nguyen, in effect, that the Tribunal did not independently assess, or did not assess properly, the danger (if any) posed to the Australian community by Mr Nguyen.  This contention, as I understand it, involves a complaint that the Tribunal sought to comply with the General Direction.

10                  Section 499(2A) provides that a person or body to whom a written direction is given under s 499(1) must comply with it.  Paragraphs 9 and 10 of the General Direction are headed “Protection of the Australian Community”.  They read as follows:

“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.  In particular, it is the Government’s view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community.  The Government considers that children and young people are especially at risk in this area.  The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders.  This is of particular importance when the offences in question are in relation to drugs and crimes of violence.  A decision maker should have due regard to the Government’s view in this respect.

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 due regard to the Government’s view in this respect.”

11                  The Tribunal gave express and apparently careful consideration to the three factors identified in para 10 of the General Direction.  However, it did not do so to the exclusion of other factors relevant under the General Direction to its ultimate conclusion.

12                  There is no substance, in my view, to the contention that the Tribunal made an error of law in assessing the danger posed to the Australian community by Mr Nguyen.

Prior Involvement in Heroin Trafficking

13                  At para 51 of its reasons for decision the Tribunal said:

“The Tribunal did not find Mr Nguyen a credible witness in regard to his stated knowledge of this drug trafficking activity, nor in his description of the role he played in the offence which led to his arrest.  Given the amount of heroin involved, and its value, it is most unlikely that this was an unpremeditated and naive involvement in crime.”

14                  Counsel for Mr Nguyen sought to characterise the above passage as a finding that Mr Nguyen was not a first offender.  A fair reading of the passage does not support this attempted characterisation.  Indeed in para 25 of its reasons for decision the Tribunal recorded that:

“[u]ntil his conviction on the drug related offence Mr Nguyen had not been involved in any other recorded criminal activity in Australia.”

15                  The above passage from para 51 of the Tribunal’s reasons for decision is to be understood, in my view, against the background that Mr Nguyen, both before the sentencing judge and before the Tribunal, sought to minimise the degree of his involvement in the drug arrangements which led to his conviction.  The sentencing judge did not accept that he was merely a courier and found that he had been in touch with the main suppliers of the heroin or their agents.  It was entirely consistent with this finding, in my view, for the Tribunal to conclude, as I understand it to have done, that Mr Nguyen did not commit the crime of which he was convicted on the ‘spur of the moment’ or as the result of naivety.

16                  There is no substance in this complaint.

Lack of Candour

17                  At para 52 of its reasons for decision, the Tribunal observed:

“Mr Nguyen’s continuing lack of candour in acknowledging his criminal activity does not auger (sic) well for his future prospects of rehabilitation.”

18                  On behalf of Mr Nguyen it was submitted, in effect, that the Tribunal made an error of law in placing weight on Mr Nguyen’s lack of candour in assessing his prospects of rehabilitation.  That is, as I understand it, it was submitted that the Tribunal took into account an irrelevant fact in arriving at the conclusion that the risk of recidivism by Mr Nguyen was moderate.  Whilst a number of reasons can theoretically be postulated to explain a lack of candour in a person convicted of a serious drug offence, I do not consider that the Tribunal’s finding as to Mr Nguyen’s lack of candour was irrelevant to the issue of his likely rehabilitation.

19                  It was open to the Tribunal to conclude, as it appears that it did, that Mr Nguyen’s failure frankly to acknowledge the extent of his criminal conduct was not a sound portend of rehabilitation.  In any event, whilst the making of findings and the drawing of inferences in the absence of evidence is an error of law (Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483), mere faulty reasoning is not an error of law (The Queen v District Court; ex parte White (1966) 116 CLR 644 at 654).

Assessment of Risk of Recidivism

20                  The General Direction required the Tribunal to have regard to Mr Nguyen’s risk of recidivism (para 10).  The Tribunal accepted the submission made to it on behalf of the respondent that the risk of recidivism by Mr Nguyen was “in the moderate rather than high range.”

21                  Evidence was placed before the Tribunal touching on Mr Nguyen’s risk of recidivism.  A pre-sentence report dated 15 May 1997 notes his relatively limited education, his social isolation in Australia, his limited English language skills, his long term unemployment and his habit of gambling.  It also notes that he appeared to have little insight into the seriousness of his actions “even though he expressed considerable remorse at the position he currently finds himself in.”  A parole report dated 29 March 1999 notes that Mr Nguyen did not have problems relating to substance abuse but had not attended any programs while in custody specific to gambling.  Apparently such programs are not always easily accessible in custody.  This report also notes that Mr Nguyen had completed certain vocational courses while in custody as well as courses related to reading, writing and oral communication skills.  The parole report records that, if released on parole, Mr Nguyen intended to reside with a friend but concluded that the sentencing judge’s assessment of Mr Nguyen as “isolated in the community” was still applicable.

22                  The Tribunal’s conclusion that the risk of recidivism by Mr Nguyen was in the moderate range was plainly open to it, on the evidence before it.

Article 33 of the Refugees Convention

23                  Article 33 of the Refugees Convention is in the following terms:

“Article 33

Prohibition of expulsion or return

(“refoulement”)

1.                  No Contracting State shall expel or return (“refouler”) a refugee in any manner whatever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.                  The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

24                  It was submitted on behalf of Mr Nguyen that the offence of which he was convicted, namely supplying a commercial quantity of heroin, could not as a matter of law be found to be “a particularly serious crime” within the meaning of Article 33(2) of the Refugees Convention.  It was argued that the reference in the same sub-article to “the security of the country in which he is” indicates that only the gravest offences will fall within the terms of Article 33(2).

25                  In A v Minister for Immigration and Multicultural Affairs at para 41 Katz J observed:

“As to whether A had been convicted of a particularly serious crime within the meaning of Art 33(2), in Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95 at 100 (Finkelstein J) held that, in order to determine whether a crime is a particularly serious one for present purposes, it is generally necessary to have regard to the circumstances in which it was committed, although he accepted the possibility that there can be crimes which are particularly serious per se.  In Betkoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 16 (unreported, 15 January 1999), a later case involving the same parties, Marshall J (at par 8 of his reasons for judgment) agreed with the approach of Finkelstein J.  Accepting that it would be necessary, in order to determine whether A had been convicted of a particularly serious crime, to have regard to the circumstances in which he committed it, it would certainly have been open to the Tribunal here to conclude that the crime of which A had been convicted had been, in the circumstances, a particularly serious one.  I say that because the crime had involved an attempt to introduce a substantial quantity of heroin into the Australian community, not for personal use by a person addicted to the drug, but for financial gain.”

26                  In the same case, Burchett and Lee JJ appear to have assumed that the offence there under consideration was capable of being regarded as “a particularly serious crime” within the meaning of Article 33(2) of the Refugees Convention.  Their Honour’s pointed out, however, that the conviction of any particularly serious crime was not the sole determinant of a deportation order; it is necessary, additionally, for the person to constitute “a danger to the community.”

27                  A v Minister for Immigration and Multicultural Affairs is a Full Court decision inconsistent with the submission made on Mr Nguyen’s behalf that the offence of which he was convicted could not as a matter of law be found to be “a particularly serious crime” within the meaning of Article 33(2) of the Refugees Convention.

28                  It was not contended that the Tribunal had failed to consider whether Mr Nguyen constitutes a danger to the Australian community.  On a fair reading of its decision, it is plain that it did consider this issue and concluded that Mr Nguyen does constitute a danger to the health and welfare of Australia’s young people by reason of the risk of his again becoming involved in a serious drug transaction.

29                  In the circumstances that the applicant’s contention concerning the proper construction of Article 33(2) of the Refugees Convention is rejected, it is not necessary for consideration to be given to whether Mr Nguyen is presently a refugee in Australia so as to be able to invoke the protection of the Refugees Convention.

CONCLUSION

30                  The application will be dismissed.

Associate:

Dated:                                          7 March 2000