A v Minister for Immigration & Multicultural Affairs [1998] FCA 1018

FEDERAL COURT OF AUSTRALIA MIGRATION – criminal deportation – application for review of decision of Administrative Appeals Tribunal to deport the applicant – use of the term "no evidence" by the Tribunal – whether error of law in the Tribunal's assessment of the risk of recidivism – application dismissed. Migration Act 1958 s 200 Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472 Luu v Renevier (1989) 91 ALR 39 Barbaro v Minister for Immigration & Ethnic Affairs (1982) 44 ALR 690

"A" v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NG 456 of 1998

MOORE J SYDNEY 17 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 456 of 1998

BETWEEN: "A"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE OF ORDER: 17 august 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is 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 NG 456 of 1998

BETWEEN: "A"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MOORE J

DATE: 17 august 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (Delivered ex tempore) This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 seeking judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision to deport the applicant. The decision of the Tribunal arose against the following background. The applicant arrived in Australia on 18 October 1990. He was a Vietnamese national then aged 21 years. He entered Australia possessing a refugee visa. In June 1994 he briefly returned to Vietnam and sought to re-enter Australia on 18 August 1994. He was apprehended carrying approximately 385 grams of heroin concealed in his shoes. The applicant was charged under s 223B of the Customs Act 1901 and convicted on 29 November 1994 in the District Court of New South Wales. He was sentenced to a period of imprisonment of six years with a non parole period of three and a half years. On 8 April 1997 a decision was made to deport the applicant under s 200 of the Migration Act 1958 which, together with s 201, provides: 200 The Minister may order the deportation of a non-citizen to whom this Division applies. 201 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; or (B) for periods that, when added together, total less than 10 years; or (i) … and (a) 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. It was the decision to deport that led to the proceedings in the Tribunal. On 17 April 1998 the Tribunal affirmed the decision of the delegate to deport the applicant. An appeal to this Court under s 44 is an appeal on a question of law only. Four grounds of appeal were advanced by counsel for the applicant. The first ground related to the approach of the Tribunal to the circumstances the applicant might confront if deported to Vietnam. The Tribunal said the following in para 40 of its reasons: In the present case no evidence was presented to the Tribunal to support the submission that the applicant was at any risk of being tortured or subjected to an unfair trial or capital punishment upon his return to Vietnam. The evidence which was tendered did refer to isolated examples of abuses of the judicial process in Vietnam, but the Tribunal is not satisfied by this evidence alone that the applicant would be subjected to such abuses. In reaching this conclusion the Tribunal was greatly assisted by the testimony provided by Mr Peter Job, director of the unauthorised arrivals section of DIMA. (Emphasis added) The evidence of Mr Job was to the effect that the Vietnamese authorities would be provided with limited information concerning the events that led to the conviction of the applicant and the nature of that conviction. Counsel for the applicant focused on the use of the expression "no evidence" by the Tribunal. He then referred to material contained in the papers before the Tribunal which might be thought to indicate that either the applicant or someone in the circumstances of the applicant would be exposed to a risk of being tortured, be exposed to a process involving unfair trial or be exposed to capital punishment. It was submitted that it was not open to the Tribunal to conclude there was no evidence concerning the risk the applicant might be exposed to were he to return to Vietnam. However the use of the words "no evidence" by the Tribunal should not be approached in any narrow or technical way. Indeed, I would respectfully adopt the observations of Gummow J in Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472 where his Honour dealt with a similar submission. His Honour said (at 479): I would not treat the references in the paragraphs I have just set out from the s 13 statement as indicating that the delegate was dissatisfied because in various respects there was "no evidence" in a technical sense. I treat the reference as beings to a lack of probative material confirmatory of what the applicant had put. There was material before the Tribunal concerning the laws of Vietnam relating to drug offences that indicated certain drug offenders were at risk, if convicted, of capital punishment. However it was accepted by counsel for the applicant that this material concerned Vietnamese laws which were not in operation at the time of the commission of the offence by the applicant. There was no material before the Tribunal that would have supported a conclusion that the regular and lawful application of Vietnamese laws could result in the applicant being subjected to capital punishment. Accordingly the submission of counsel for the applicant was limited to the contention that there was material before the Tribunal which indicated or tended to indicate that the applicant would be subjected to a process of unfair trial in Vietnam in which the laws would not or might not be properly applied. Support for this submission was said to be found in the United States Department of State Vietnam Report on Human Rights Practices 1996, the 1997 Amnesty International Report including a report on Vietnam and an article dated 8 December 1997 in the South China Morning Post.