FEDERAL COURT OF AUSTRALIA

Lau v Minister for Immigration & Multicultural Affairs [2000] FCA 698

DEPORTATION  - appeal from decision of Administrative Appeals Tribunal - alleged errors of law constituted by erroneous consideration of evidence indicating remorse, likelihood of recidivism or rehabilitation, and prospective hardship upon deportation - whether decision unreasonable or failed to consider material stipulated as relevant by Ministerial direction - relationship between statutory discretion to deport and Ministerial directions.

Migration Act 1958 (Cth) s 200

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 56 ALD 43 Cited

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Anor (1986) 162 CLR 24 Cited

Van Phuc Diep v Minister for Immigration and Multicultural Affairs [2000] FCA 272 Refd to

Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238  Refd to

Australian Broadcasting Tribunal v Bond & Ors  (1990) 170 CLR 321 Cited

Tuite v AAT  (1993) 40 FCR 483, 484 (Davies J) Cited

Percerep v Minister for Immigration and Multicultural Affairs, [1998] FCA 1088 Cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 Cited

Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 (Sackville J) Cited

JACKY KIN FAT LAU v MINISTER FOR IMMIGRATION AND MULTICULTURALAFFAIRS

N 827 of 1999

KIEFEL, NORTH, MANSFIELD JJ

26 MAY 2000

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A DEPUTY PRESIDENT

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY A DEPUTY PRESIDENT

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant appeals from a decision of the Administrative Appeals Tribunal, constituted by a Deputy President, affirming a decision of the delegate of the Minister made on 28 September 1998, that the appellant be deported from Australia pursuant to s 200 of the Migration Act 1958 (Cth).  The appeal is limited to questions of law:  s 44 Administrative Appeals Tribunal Act 1975 (Cth).

Background

2                     The appellant came to Australia in 1984 on a tourist visa.  His immediate family, but not his father, had travelled to Australia at an earlier time.  He was then aged ten years and eight months.  He received his schooling in Australia from that time.  On 25 October 1995, in the company of others, he committed the offence of “aggravated break, enter and commit felony”, for which he was convicted in the District Court at Sydney on 27 September 1996 and sentenced to a minimum term of three years and four months imprisonment and an additional term of two years.  Other offences were committed by him prior to trial, and whilst he was on bail, but it was this offence which founded the order for deportation.  At the time of the commission of the offence the appellant was not an Australian citizen. 

The Tribunal Decision

3                     The offence founding the deportation order was one to which the description “home invasion” has been applied.  It is clear that the Tribunal was much influenced by the nature of the offence.  Indeed, the two factors which it said ultimately weighed in favour of affirming the order for deportation were the gravity of the offence and the serious risk of recidivism.  The Tribunal described the offence as evidencing “a singular cowardice, brutality and callousness …”.  The appellant, his brother and another acquaintance decided upon an armed robbery at the home of a friend of his brother’s.  Entry was obtained, by ruse by the appellant and the acquaintance.  When entry was obtained, they tied up and blindfolded the 19 year old son of the household who was there alone, and the appellant menaced him with a pistol which he had in his possession.  The reference to the pistol also assumes some importance in the Tribunal’s assessment of the appellant’s credibility, which in turn influenced its view of the genuineness of his remorse.  The story given to the Tribunal was that the appellant had been given the pistol at school.  He then retained it for three years.  This was wholly different from a story of recent acquisition which had been given to the police.  The inconsistencies were put to the appellant, but not explained satisfactorily, and the Tribunal concluded that the appellant had deliberately misled it in the hope of a more favourable gloss on the history of the weapon. 

4                     Whilst on bail for the abovementioned offence the appellant, as a member of a gang, offended on four more occasions by preying upon male Asian students and obtaining money from them by threats.  In this respect, the Tribunal noted the sentencing Judge’s observation that the appellant was “at least a major player” and that “one has the impression from your conduct that you were certainly at that stage by nature both vicious and manipulative”.  This also assumes some relevance with respect to the sentencing Judge’s view of the appellant’s expressions of contrition. 

5                     In addition to the view the Tribunal took of the appellant’s credit-worthiness, it is clear that the view it formed of his lack of empathy with his victims was influential in its assessment of the likelihood of his re-offending.  The consultant psychologist’s pre-sentence report had described him as having “a generally disturbed personality disorder”.  The Tribunal said that one aspect of this disorder was that he showed no genuine empathy with the trauma he inflicted on his victims.  It observed the appellant claimed “to this day that he ‘didn’t hurt anyone’”, and pointed out that on the appeal which had been brought against his sentence (but later withdrawn) the appellant had said that he had merely tied the young man up.  The Tribunal concluded:

“In other words, he does not appreciate to this day that threatening someone with a pistol, tying him up with tape and blindfolding him constitutes ‘hurt’, as does demanding money with menaces with an accomplice holding a knife.”

6                     The Tribunal then referred to passages from the transcript of a conversation between the Deputy President and the appellant:

“THE D. PRESIDENT:          Would the threat and so on with a gun and tying him up [not] create some hurt. -- Yes

THE D. PRESIDENT:             So when it is put to you, you said you didn’t hurt anyone.  That is really not quite accurate, is it?  --- Yes, that’s right.  I tried not to hurt anybody.  I hurt him, yes.”

7                     The Tribunal went on to reject the appellant’s protestations of feeling guilt for his past violent and criminal behaviour.  After observing that it was not for the Tribunal to determine what was the cause of the appellant’s personality disorder, it was said:

“… it is sufficient for my purposes that I am satisfied that the applicant remains a sociopath who continues to pose a threat to the Australian community if released, a feature which is unaffected by the applicant’s good behaviour whilst in gaol and the bundle of certificates, certifying the completion of a number of courses, none of which seem relevant to behavioural changes.”

This passage and in particular the reference to the term “sociopath” assumes some importance on the appeal.  The Tribunal’s impression of the appellant, the reasons disclose, was confirmed by reference to his discussions with members of his family, which showed that he had down-played his part in the crimes.  Taking into account the matters referred to above, the appellant’s lack of full appreciation of the horrendous nature of the crimes and of the effect on his victims, combined with the fact that the crimes revealed him to be weak-willed and easily led, the Tribunal concluded that there was a high risk of his re-offending.

8                     The Tribunal then turned to the General Direction under the hand of the Minister and dated 21 December 1998 with respect to Australia’s Criminal Deportation Policy (see s 499 Migration Act).  The Tribunal identified as a “primary consideration” the expectation of the Australian community to be protected from, and have removed, unacceptable levels of risk of crime.  Here, the Tribunal noted, there were crimes of violence involved where the victims were young and vulnerable, the attacks were cowardly, they involved violence, the use of a gun and took place in the context of a gang.  It stated at that point:

“Having regard to the seriousness and nature of the crimes involved, the lack of genuine remorse, the risk of recidivism and the likelihood that deportation of this man may prevent or discourage similar offences by other persons, the scales tip heavily in favour of deportation.”

9                     In view of the contentions advanced on the appeal, it is necessary to set out the paragraphs which followed:

            “Even if I were to [dis]regard the risk of recidivism - which I emphatically do not - there is yet another reason in favour of deportation.  The Australian community expects that non-citizen perpetrators of crimes abhorrent to the community should be not be allowed to remain in the community. This is succinctly set out in para 15 of the General Direction of Australia’s Deportation Policy, where it is stated:

‘It is the Government’s view that the Australian community trusts non-citizen residents to obey Australian laws.  Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community.  Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported.  Weight should be given to this factor in proportion to the decision maker’s understanding of the community’s attitude to the potential deportee’s offences.  Decision makers should have due regard to the Government’s view in this respect.” (my underlining)

            Having said this, there are weighty reasons against deportation.  In the first place, there can be little doubt that the applicant, if deported to Hong Kong, will suffer considerable hardship.  Although he is fluent in Cantonese, he has no cultural ties with Hong Kong, nor any family members who can keep an eye on him.  One must, therefore, have genuine fears for his future if deported.

            Again, he has close family ties with his mother and step-sister and removing him from that milieu will undoubtedly cause considerable hardship to the mother and continuing tension between her and her step-son-in-law and, perhaps to a lesser between husband and wife, the girl she raised from babyhood and who regards her as her mother.  Mr Cheung points out, correctly, that disintegration of a close family is an important consideration which should be given great weight, and I have given anxious thoughts to this factor and the likely impact deportation will have on the family dynamics.

            Again, I am acutely conscious that this young man arrived in this country aged ten years, which is a factor in his favour, the presumption being that the person has developed significant ties with the Australian community.  Applied to this case, I have not been persuaded that this young man has integrated well into the Australian community.  One need only to point to the admitted fact that he singles out people of Asian descent to prey upon in order to rob them.  Where the crimes committed are so offensive to community standards, the fact that the offender has spent his adolescence in this country cannot save him from deportation.  This is well recognised in Government policy, which notes:

“While it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government’s intention that such people will never be deported.”

            Again, it may be said that the applicant was unaware that he may face deportation as a result of the home invasion before committing the extortion offences (which were committed before he was sentenced for the deportable offence, hence no warning could have been given).  On the other hand, on the whole of the evidence, I am not persuaded that such awareness would have deterred him from re-offending.

            What ultimately tilts the scales against the applicant in this case is the gravity of the offences he committed, coupled with what I regard as a serious risk of recidivism.

            In the result, whilst mindful that deportation will undoubtedly cause great anxiety and tensions within his family in Australia, but no matter how heavily one weighs this factor on the other side of the scales, it cannot tilt the balance in favour of setting the deportation order aside.”

Contentions on the Appeal

10                  The principal arguments advanced by the appellant were connected with the finding that the risk of recidivism was high and with the factors associated with it, including the Tribunal’s view of the appellant’s understanding of his actions and their effect upon the victims.  The appellant pointed to a dictionary definition of “sociopath” (Black’s Law Dictionary 7^th ed) which equated such a person with a psychopath, for which term the following definition was given:

“1.       A person with a mental disorder characterised by an extremely anti-social personality that often leads to aggressive, perverted, or criminal behaviour.

2.         Loosely, a person who is mentally ill or unstable.”

11                  The appellant’s point was that there was no basis in the evidence for the Tribunal to conclude that the appellant was a sociopath within the meanings given to that term.

12                  There is some difference in the definitions offered by other dictionaries.  That in the Oxford English dictionary (2^nd ed) refers to a sociopath as:

“Someone with a personality disorder manifesting itself chiefly in anti-social attitudes and behaviour.”

13                  We would have thought this more closely approximates to a general understanding of the word.  This question is not, however, to be resolved by reference to various dictionary definitions.  It was not a case where a finding as to whether a person suffered a particular disorder was required.  Such a case might be seen to involve the meaning of the term and the application of the facts to it, which is to say questions of fact and law.  Here, however, the question was what the Tribunal meant by the term “sociopath”, not how it is correctly defined, and whether there was evidence to support its view.  It seems clear to us that the Tribunal used the term to connote a person who suffered from a personality disorder and displayed egocentric and antisocial behaviour.  The Tribunal said as much in the passage which preceded the reference to the term and in its reference to the psychologist’s report, which conveyed to it that the appellant could not empathise with his victims.  The Tribunal’s view is supported by reference to the contents of that report, where the “Clinical Opinion” commences with the sentence:

“This young man is exhibiting antisocial behaviour as part of a generally disturbed personality organisation”.

And later:

“While Jack’s perspective on the offences he is now charged with remains essentially egocentric, he does show signs of a growing maturity ….  He is sincerely remorseful over the grief his behaviour has caused his mother and family, and is now acutely aware of the seriousness of the matters.”

14                  The latter reference to his perception of effects as not extending to his victims assumes importance with respect to the next complaint made of the Tribunal’s findings.

15                  It was submitted that the Tribunal was wrong in its assessment of whether the appellant recognised that he “hurt” victims in a sense wider than infliction of physical harm.  Alternatively, the Tribunal was “unreasonable” in that view.  It is not necessary for us to deal with the latter submission as a legal proposition at this point  The appellant submitted that a review of the evidence showed that when he denied having “hurt” someone, he was speaking in the sense of physical injury and should not have been taken to deny that his actions had other, adverse, effects upon his victims.

16                  In the evidence led by his legal representative, the appellant was asked whether he felt sorry now and he said that he felt “very sorry”.  When asked to expand upon that, he said “you know, what I done.  I hurt a lot of people, my mum, my family.”  This was the same, limited expression of remorse recorded in the psychologist’s report.  Understandably the questioner pressed for a further answer and reminded the witness of the importance of the question.  He then enquired whether the appellant understood the question, and he said he did.  The appellant then said that he was really sorry about what he had done.  To this point, no reference was made at all to his victims.  A short time later his legal representative asked whether he knew who lived at the house premises or whether he had been there before.  He then said that he had not thought about how “they” had felt.  His lawyer persisted:

“Even to this day, you don’t think how they feel? --- Yes, I do.

When did you start thinking? --- In gaol and all this time.

What do you think they would have felt?  If you were the person inside, someone’s coming in, tied them up, point the gun at them, what would you feel? --- Very scared and, you know, very scared and helpless.

Would you understand now, you have demanded money, you have threatened people with violence, you have demanded money from them in the streets, do you understand what they felt? --- Yes, very scared.

Would you like people to do that to you? --- No.

Would you, you say you are sorry now, do you really mean that? --- Yes.”

17                  In cross-examination, the appellant was asked about his pointing the gun at the young man in the house, the process of tying him up and covering his eyes and putting him in the toilet where he continued to question him about the whereabouts of further property which could be taken.  He was asked whether he “hurt the victim” and he replied “No”.  He said that he didn’t know whether the young man had then cried but he did not shout out for help.  At a later point in the cross-examination, attention was turned to the appeal he had brought against sentence:

“When you lodged the appeal did you, as part of your grounds of appeal, say “I did not hurt anybody and I was not going to hurt anybody?” --- Yes.

What did you mean by that Stephen?---- Jack.

Sorry, Jack? --- At that robbery I didn’t hurt anybody and I didn’t even try to hurt anybody.  I just tied him up.

Do you consider that today what you’ve just described that you just tied him up and that means you did not hurt anybody? --- Well, I was not going to,  yes.  I was not going to hurt him, you know.

THE D. PRESIDENT:                         Would the threat and so on with the gun and tying him up create some hurt, does it not? --- Yes.

So when it is put to you, you said you didn’t hurt anyone.  That is really not quite accurate, is it? --- Yes, that’s right.  I tried not to hurt anybody.  I hurt him, yes. 

MR CHEUNG:                       You accept that it is a frightening experience to tape someone up and hold a gun up against some part of their body? --- Yes.

It is a very frightening experience? --- Yes.  It was my first time. 

When I say it is a frightening experience, I meant it is a frightening experience for the victim? --- Yes, definitely.

…”.

18                  The view that this evidence disclosed no real understanding on the part of the appellant of what his victims may have suffered was, in our view, one clearly open to the Tribunal.  The evidence to support it was the number of responses made by the appellant which related the effects of his actions only to himself and his family.  It was a matter for the Tribunal to give whatever weight it considered appropriate to the responses which were elicited from him by his lawyer which came closer to expressing some understanding or sympathy.  Even so, they stood in sharp contrast to other answers he gave.  It would hardly be surprising that the Tribunal discounted them altogether.  As it said at another point in its reasons, the legal representative had “worked hard in attempting to extract feelings of guilt, alas the applicant’s protestations did not have the ring of conviction.”  The Tribunal, of course, was in a position to observe the witness as he answered the questions put.  In any event, the task for this Court is not to review the Tribunal for questionable reasoning:  Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 56 ALD 43 [146] (Kenny J).  It cannot amount to error of law.

19                  There were a number of factors, it was submitted, which the Tribunal failed to take into account.  The basis upon which the Tribunal could be said to have committed legal error in failing to have taken a matter into account in its process of reasoning is a question which we will address shortly.  Many of the matters to which the appellant points may be readily resolved by reference to the Tribunal’s reasons. 

20                  It was submitted that the Tribunal failed to consider the courses the appellant had undertaken whilst in gaol.  They showed the extent of rehabilitation he had already achieved.  The answer to this is that the Tribunal clearly had this aspect of the evidence in mind when it expressed the opinion that he continued to pose a threat to the community despite his good behaviour in gaol and a “bundle of certificates, certifying the completion of a number of courses”, none of which, importantly, the Tribunal considered “relevant to behavioural changes”.  This opinion was not challenged.  It was certainly one open having regard to the nature of the courses undertaken.

21                  It was also submitted that the Tribunal failed to consider the additional relevance of the appellant having grown up in Australia.  The Tribunal, it was said, attributed only one reason to this part of the considerations pointed to by the General Direction, namely that a person who had spent much of their youth in Australia would have developed ties here.  The additional relevance of this factor, on the appellant’s case, was that he had no contacts or ties in the country to which he would be obliged to return, and hardship to him must also be considered from this point of view.  Contrary to the submissions, the Tribunal did consider this aspect of hardship.  It accepted that he would suffer real hardship for the very reason that he had no cultural or family ties in Hong Kong.  It said that it was “acutely conscious” of the factor in his favour, namely that he had arrived in Australia as a young man aged ten years. 

22                  There were a number of other factors to which the appellant pointed as those which the Tribunal ought to have taken into account, in the sense that it should at least have dealt with them:  the sentencing Judges’ acceptance of the genuineness of the appellant’s contrition and that, if deported, he would lose the benefit of rehabilitation by way of the long period of probation and parole which the sentencing Judges had put in place, obviously in the belief that it might work to his benefit. 

23                  In our view, the Tribunal was able to form its own opinion about both the nature of the crime and the risk of re-offending.  The sentencing Judges’ comments could not be considered essential to the Tribunal’s assessment, although in many cases they might be helpful.  In this case, moreover, the Tribunal had the appellant questioned before it on matters going to remorse.  It is not clear whether the sentencing Judges were in such a position.  Similarly, the Tribunal was well able to make its own assessment of any prospect of rehabilitation given, in particular, that it was viewing the matter after a substantial part of the period for rehabilitation had passed.  The sentencing Judges approached the matter prospectively. 

24                  In any event, the appellant’s submissions in this regard suffered from the fundamental flaw that they assumed some obligation, on the part of the Tribunal, to take specific matters, those the appellant considered to be relevant, into account.  The authorities are clear that it is not obliged to do so unless the statute expressly or impliedly requires a matter to be taken into account:  Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Anor (1986) 162 CLR 24, 40.  The only factor pointed to by the appellant which possibly falls into this category is that referred to in the General Direction as the “extent of rehabilitation already achieved”.  It is identified as a relevant factor with respect to “the risk of recidivism”.  It is not necessary for us to express a concluded view upon whether the General Direction is to be taken to require express consideration as to what level of rehabilitation, if any, had been achieved at the point where the decision was made, although one would think this logically to be involved in its considerations of the risk of recidivism.  That apart, it would not seem to us that the General Direction requires every factor identified as potentially relevant to be addressed in every case:  and see Van Phuc Diep v Minister for Immigration and Multicultural Affairs [2000] FCA 272, [35] (Lehane J).  In this case, the topic was addressed by the Tribunal.  It was not satisfied that the educational courses undertaken by the appellant in prison were concerned with rehabilitation and it clearly did not accept that the appellant had gained insight or felt remorse.

25                  At another point in the appellant’s submissions, reliance was placed upon a passage from the majority judgment (Whitlam and Gyles JJ) in Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 [23]:

“The possibility of rehabilitating the appellant from a life affected by drugs, alcohol and gambling, and the almost certain exacerbation of those personal problems by reason of deportation, simply cannot be described as irrelevant to the Direction.”

(and to similar effect Katz J at [80]).

26                  From this observation, the appellant argued rehabilitation must be taken to be a relevant consideration under the Direction.  The Court was there considering a decision made under a previous policy, which differed in its terms from the Direction which was to be applied.  In that context, it was not said that the Direction required an assessment as to whether rehabilitation prospects were better in Australia, but that that was a matter which it was not precluded from taking into account, which is to say it was not “irrelevant” in the administrative law sense. 

27                  It has not been necessary for us to deal with the appellant’s submissions concerning unreasonableness.  At various points it was submitted that what amounted to findings of fact could not reasonably have been arrived at.  These submissions misapprehend the ground of unreasonableness, which relates to the final decision in question, here the subject of the appeal and not a finding made along the way:  Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, 359.  The appellant attempted to argue that the provisions of s 5 Administrative Decisions (Judicial Review) Act 1977 and cases concerning the grounds for review provided in it, are not applicable to an appeal under s 44 AAT Act.  The words “question of law” may not be limited by s 5, but do encompass the errors of law to which it refers, including the making of a decision which no reasonable decision-maker could have made:  Tuite v AAT  (1993) 40 FCR 483, 484 (Davies J);  Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088.  No error of law is shown by some wrong reasoning on a question of fact leading to the decision;  nor does it permit consideration of the weight which should have been afforded to various factors:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 [40] and [44-5]. 

28                  The appellant also submitted that the Minister’s General Direction was inconsistent with the unfettered discretion given by s 200 Migration Act 1958.  The problem, it was submitted, lay both in the Direction itself and in the way in which it was applied by the Tribunal.  Here the General Direction required, and the Tribunal had regard to, “primary” considerations and it therefore did not exercise an independent discretion. 

29                  It is not necessary to set out parts of the General Direction.  It makes clear that it is necessary to balance a number of important factors in reaching a decision as to deportation.  A decision-maker is required to have due regard to the importance placed by the government on the two primary considerations nominated, but it states a balancing process should also be adopted, one which takes into account all relevant considerations.  It is clear that it is open to a decision-maker to regard the primary considerations as not governing the outcome in a particular case.  It has been held that the Direction does not have the rigid operation as that for which the appellant contends:  Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 (Sackville J).  It is apparent that the Tribunal weighed factors affecting the appellant and his family, but that what tipped the balance was the serious nature of the crimes and the likelihood that he might re-offend. 

Conclusion

30                  No error of law is disclosed in the Tribunal’s reasoning.  The appeal should be dismissed with costs.

Associate:

Dated:              26 May 2000