FEDERAL COURT OF AUSTRALIA Cao v Minister for Immigration & Multicultural Affairs [2000] FCA 1392 CAO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 44 of 2000 CARR J 29 SEPTEMBER 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 44 OF 2000 BETWEEN: TRUNG KHAC CAO Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 29 SEPTEMBER 2000 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs other than any costs occasioned by the adjournment of the hearing on 26 September 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 44 OF 2000 BETWEEN: TRUNG KHAC CAO Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE: 29 SEPTEMBER 2000 PLACE: PERTH REASONS FOR JUDGMENT introduction 1 This application, which the applicant appears to have prepared and filed without legal assistance, has been treated as both an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision of the Administrative Appeals Tribunal, given on 15 February 2000, and also as an application by way of an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal's decision was to affirm a decision of a delegate of the respondent, made on 24 June 1998, under s 200 of the Migration Act 1958 (Cth) ("the Act"), to deport the applicant. The relevant effect of s 200 (when read with s 201) in the present matter is, in summary, that because the applicant is a non-citizen who has been in Australia for less than ten years and because he has been convicted in Australia of an offence for which he has been sentenced to imprisonment for not less than one year, the respondent may deport him. factual background 2 The applicant was born in Vietnam on 20 May 1967. He arrived in Australia on 25 July 1991 from Malaysia. On arrival the respondent issued the applicant with a Migrant Visa "Class 205 – Camp Clearance Migrant" in accordance with Regulation 1106 of the Migration Regulations. As can be seen, the applicant was just over 24 years of age when he arrived in Australia. The following is a summary of the applicant's record of convictions since his arrival in Australia, as it appears in one of the annexures to an affidavit tendered by the respondent. 22/02/94 STEALING 2 counts $70 fine on each count 11/10/94 POSSESS PROHIBITED DRUG 1 count $400 fine 25/11/94 STEALING 1 count $500 fine 19/04/95 BURGLARY & COMMIT OFFENCE 1 count Probation 12 months 08/05/95 STEALING 1 count $500 fine 29/05/95 ARMED ROBBERY IN COMPANY 1 count 4 years 43 weeks imp. 27/06/95 REENTER CASINO PREMISES WHEN PROHIBITED 3 counts 1 month imp. & $50 05/07/95 BETTING PAST POST 1 count 1 month imp. 05/07/95 REENTER CASINO PREMISES WHEN PROHIBITED 1 count 1 month imp. conc. 12/09/95 BURGLARY WITH INTENT 1 count 6 months imp. cum. 06/06/97 UNLAWFUL WOUNDING 1 count $700 fine 27/06/97 ON PREMISES/CURTILAGE WITHOUT LAWFUL EXCUSE 1 count $50 fine 09/03/98 CRIMINAL DAMAGE 1 count 6 months imp. 09/03/98 ATTEMPTED STEALING 1 count 6 months imp. 3 The deportation order was based on the conviction, in the Supreme Court of Western Australia on 29 May 1995, for armed robbery while in company. That offence was committed on 7 April 1994, for which he was sentenced to four years and 43 weeks imprisonment. The applicant was released from prison on parole in January 1997. In that month the respondent's Department issued a warning to the applicant that he faced the possibility of deportation were he to re-offend. On 5 June 1997 the applicant committed the offence of unlawful wounding at Carnarvon in Western Australia for which he was convicted on the following day. The circumstances were that after making a demand for money and the demand being refused, he stabbed the person concerned in the back with a knife. His parole was revoked and he was required to undergo an aggression control course before being released on parole again on 17 December 1997. On 9 March 1998 he was convicted of the offences of criminal damage and attempted stealing for which he was sentenced to six months imprisonment in respect of each offence to be served concurrently. On 24 June 1998 the respondent's delegate decided that the applicant be deported. On 19 July 1998 the applicant applied to the Tribunal for review of that decision. The Tribunal conducted an oral hearing on 14 and 15 February 2000, at the conclusion of which it delivered its ex tempore reasons for affirming the decision of the respondent's delegate. the Tribunal's reasoning 4 The Tribunal stated that it was satisfied that what it described as "the formal circumstances" existed which permitted the respondent to order deportation of the applicant i.e. the facts that the applicant had been in Australia for less than ten years and, having committed the offence of armed robbery in 1995, had been sentenced to more than one year's imprisonment. The Tribunal noted that there was a discretion whether to order the deportation and that it (the Tribunal) also had a discretion as to whether to set aside the deportation order or not. The Tribunal then said this: "In exercising that discretion, the Tribunal is bound to follow the law and the Government's immigration policy, which sets out the ways in which I can exercise this discretion." 5 An issue arose concerning which immigration policy the Tribunal had followed. The issue arose because I raised it with counsel for the respondent. 6 The respondent's written outline of submissions had identified, by reference to an annexure to an affidavit filed on his behalf, the policy which, at that stage, the respondent's legal advisers thought had been applied by the Tribunal. The annexure comprised a policy statement described as "the Government's Criminal Deportation Policy" which came into effect on 23 December 1992. I shall refer to this statement as "the Policy". As appears from several recent decisions of this Court, on 21 December 1998 the respondent signed an instrument described as "General Direction – Criminal Deportation – No. 9". I shall refer to that document as "the Direction". The respondent gave the Direction under s 499 of the Act to any person or body having functions or powers in relation to the deportation of a non-citizen under s 200 of the Act. The cases to which I have just referred include Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, a decision of the Full Court of this Court and Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567. 7 There was other evidence, in particular several passages in the transcript of evidence of the second day of the hearing before the Tribunal when the respondent's representative addressed the Tribunal, which indicated that the respondent's case was put on the basis of the Direction. For example, a document was passed up to the Tribunal which close examination of the transcript strongly suggests was the Direction. I raised the matter with the respondent's counsel and suggested that he might like to consider applying for an adjournment so that the issue could be clarified. Counsel, after obtaining instructions, made such an application. The hearing was stood over for three days to enable further evidence to be adduced. 8 At the resumed hearing, the respondent tendered an affidavit sworn by a senior legal officer who had been his representative before the Tribunal. Relevantly the evidence in that affidavit was that the respondent's Department had forwarded to the Tribunal, by way of supplementary documents under s 37 of the Administrative Appeals Tribunal Act, documents which included a copy of the Direction. This was several months before the hearing took place. The deponent to that affidavit also swore that in the respondent's written contentions to the Tribunal there was express reference to the Direction as being binding on the Tribunal and superseding the Policy. Finally, the deponent confirmed that in final address to the Tribunal he had passed up to it a copy of the Direction and had addressed the Tribunal in detail by reference to that document. 9 The applicant objected to the admission of that affidavit into evidence. At one stage I considered adjourning the matter to enable the applicant to have an opportunity to file an answering affidavit. However, for reasons which I gave this morning, I refused to grant an adjournment. 10 From my examination of the transcript of evidence before the Tribunal and on the basis of the further affidavit to which I have just referred, I am satisfied that the Direction was before the Tribunal at the time when it made its decision, that in accordance with s 499 of the Act it gave due regard to the Direction when it did so and that it did not apply the Policy. I now turn to the Tribunal's reasons for decision. 11 The Tribunal's reasons were short, and rather than attempt to summarise them, it is convenient to set out the remainder of its reasons in full below: "The Tribunal is looking at many offences, 13 or 14 convictions and the latest two occurred whilst you were in prison. The evidence indicated that a primary reason for the commission of many of these offences is because of your drug habit, which you refuse to acknowledge. The Tribunal has heard your side of things. The main issue for the Tribunal to decide is whether you would be a risk to the Australian community should you not be deported. It has concluded that there is a real risk to the Australian community if you are out again mixing with your associates and taking drugs again. It would put the Australian community at high risk. The Tribunal recommends that as you are going back to Vietnam in September or October of this year, that you acknowledge your drug problem and undertake a drug rehabilitation course whilst in prison. The second consideration for the Tribunal is the hardship to you and your family should you be deported from Australia to Vietnam. The Tribunal has heard evidence that you have no family in Australia, which has been one of the chief problems for you. You have been isolated from your family, have no family member to counsel you and you have become mixed up with a group of people who take drugs and commit crimes. There is no family here who will be sorry to see you deported. You have given evidence that you are afraid that you will be punished if you return to Vietnam. However, you will not be placed in prison in Vietnam because of the crimes you committed in Australia. That just does not happen. The only interest that the Vietnamese Government will have about the crimes, which you committed here, is to ask: "is he going to do it again in Vietnam?" They will be looking towards your future conduct in Vietnam, not the past in Australia. You are also frightened that you will be punished for having left Vietnam illegally. All the information and evidence that has been put forward to the Tribunal has indicated that the Vietnamese Government is not punishing people who left illegally and then return. You have had concerns about being punished for avoiding the Draft for military service in Vietnam. The evidence shows that after 5 years you cannot be prosecuted under Vietnamese law for that offence. The Vietnamese government is trying to reduce the size of their army, not pull people back into it. You will probably find that things in Vietnam have changed a great deal since you were there. Many people who left illegally, and then returned, are doing very well in that country. The Tribunal has observed you during the course of proceedings and formed the opinion that you have a reasonable command of English and when unaffected by drugs, are intelligent and bright. The Tribunal has been impressed with the way you have accepted your wrongdoings and not tried to make excuses for them or evade responsibility. The one thing you can do now, whilst you finish the remainder of your sentence, continue to make contact with your family by letter and telephone as you will be returning to them about September/October. You will be starting a new life in Vietnam, which should include your family." grounds of the appeal 12 The applicant was unrepresented both before the Tribunal and at the hearing of the appeal in this Court, but he filed an affidavit. He tendered that affidavit together with character references and certain certificates in relation to courses which he had completed. Nearly all of that affidavit and other material contained matter which went to the merits or otherwise of whether the applicant should be deported. Whether this application be regarded as being made under the ADJR Act or as an appeal under s 44(1) of the Administrative Appeals Tribunal Act, which limits such an appeal to one that is "on a question of law", there was virtually nothing relevant in the applicant's affidavit and other material. The merits of the deportation order are, of course, for the Tribunal to decide, not this Court. 13 The grounds of the application are stated as follows: "5. The ground(s) of this application is/are that TOTALLY UNREASONABLE. VERY BIASED. 6. If one or more of the grounds for this application is fraud, actual bias or bad faith, give details of this conduct: ŔACTUAL BIAS A. FURTHER TIME TO APPEAL i.e. FURTHER GROUND B. OBTAIN LEGAL REPRESENTATION C. RECEIVE OTHER COMMONWEALTH PAPERWORKS IN RELATION TO APPEAL FRAUD & BAD FAITH." 14 I gave the applicant an opportunity to elaborate upon these grounds by way of oral address. His oral address did not assist me in resolving the issues raised by the application. The applicant also passed up this morning a type-written set of submissions. They would appear to have been drafted by someone with some legal knowledge. There was only one matter, raised in those type-written submissions, which I consider it necessary to mention. That was a proposition that the applicant was a refugee. The question whether the applicant was a refugee was not a matter before the Tribunal for decision. There was some evidence that the applicant expressly disclaimed any refugee status. There is nothing in the materials relevant to the proposed deportation of the applicant which suggests that he has sought protection as a refugee as defined in the Refugees' Convention. my reasoning 15 I have read the Tribunal's reasons several times. I am quite satisfied that the Tribunal's decision was not unreasonable in the administrative law sense. From the evidence before me it is quite clear that all of the conclusions which the Tribunal reached were reasonably open to it. 16 I have also read the transcript of proceedings before the Tribunal to see whether there is any evidence of bias whether actual or perceived. There is quite clearly no such evidence. In fact a reading of that transcript shows that the Tribunal treated the applicant most fairly at all stages. It is true that at one stage the Tribunal expressed a provisional view about the likelihood of the applicant resuming his former association with certain criminals but I am satisfied that this was on the basis that the applicant had agreed that this was likely and that the view expressed was provisional. The Tribunal made that sufficiently clear – see AB 618 at line 24. 17 There is nothing in the evidence before me to suggest any improper purpose, fraud or deliberate abuse of power on the part of the Tribunal. 18 I am satisfied that the Tribunal did not err in law. It observed its statutory obligation to comply with the Direction, but at the same time can be seen to have recognised that it had a discretion. 19 In my view, its decision was made in accordance with the law and none of the grounds raised by the application have been made out. 20 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr. Associate: Dated: The Applicant was not represented: Counsel for the Respondent: Mr A A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26, 29 September 2000 Date of Judgment: 29 September 2000