Birceru, Peter v Minister for Immigration & Multicultural Affairs [1998] FCA 417

FEDERAL COURT OF AUSTRALIA MIGRATION - applicant a Romanian citizen - applicant committed criminal offences while resident in Australia - whether Minister empowered to deport applicant pursuant to ss 200 and 201 Migration Act 1958 (Cth). Administrative Appeals Tribunal Act 1975 s 44 Migration Act 1958 (Cth) ss 200, 201 Nevistic v Minister for Immigration and Ethnic Affairs 1981 51 FLR 325, referred to

PETER BIRCERU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 658 of 1997 MARSHALL J MELBOURNE 6 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 658 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT G.L. mCdonald

BETWEEN: PETER BIRCERU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 6 APRIL 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed, with costs, including reserved costs, if any. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 658 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT G.L. mCdonald

BETWEEN: PETER BIRCERU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MARSHALL J

DATE: 6 april 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT MARSHALL J This matter is an appeal from a decision of the Administrative Appeals Tribunal ("AAT") constituted by Deputy President McDonald made on 28 October 1997. In his decision, Deputy President McDonald affirmed a decision made by a delegate of the respondent to deport the applicant, Mr Birceru. The appeal lies pursuant to s 44(1) of Administrative Appeals Tribunal Act 1975 ("the AAT Act") which provides that: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." BACKGROUND Mr Birceru is a citizen of Romania. He is not an Australian citizen. He entered Australia on 29 July 1978 as a refugee. Mr Birceru was then 25 years old. He is now 45 years old. He has never married and has no children. Mr Birceru's mother resides in Romania. He has not spoken to her since 1987 when he had a telephone conversation with her. He has a brother in Romania with whom he has not had contact since 1977. Mr Birceru has a long criminal record, including mainly theft of motor vehicles and use of heroin. Due to his drug addiction he has not been in employment in the last decade. During that time he has either been in prison or receiving social security. In 1980 Mr Birceru was sentenced to twelve months imprisonment for theft of a motor car. This offence was committed on 16 March 1980. On 22 July 1988 Mr Birceru was again convicted of theft of a motor car and sentenced to twelve months imprisonment. This offence was committed on 1 May 1986, within ten years after his arrival in Australia. In 1980 and 1988 Mr Birceru received warnings from the Department of Immigration and Ethnic Affairs concerning his liability for deportation arising from his criminal conduct. On 9 June 1997 a delegate of the respondent decided to deport Mr Birceru. The delegate observed in the decision that Mr Birceru "has an extensive history of continuous offences, at this point in time totalling in excess of 146 convictions." Mr Birceru appealed from that decision to the AAT. Proceedings before the AAT were held on 27 October 1997. On 28 October 1997 the AAT affirmed the decision of the delegate. On 25 November 1997 Mr Birceru filed a notice of appeal in the Victoria District Registry of the Court. The questions of law said to be raised on the appeal were as follows: · "The fair and just administration of sections 200 and 201 of the Migration Act 1958."