Lokeni Hui v Commonwealth of Australia [2001] FCA 69

FEDERAL COURT OF AUSTRALIA

Lokeni Hui v Commonwealth of Australia [2001] FCA 69

MIGRATION – Criminal deportation – Application challenging decision of Administrative Appeals Tribunal – In considering impact of deportation on applicant's children, Tribunal took into account a report of a child psychiatrist who had not seen applicant interacting with children – Whether this was an error of law.

PRACTICE AND PROCEDURE – Pro bono assistance under Order 80 of Federal Court Rules – Circumstances in which references will be made. Administrative Appeals Tribunal Act 1975: s 44 Federal Court Rules: Order 80 LOKENI HUI v COMMONWEALTH OF AUSTRALIA N961 of 2000 WILCOX, WEINBERG AND CONTI JJ 5 FEBRUARY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N961 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LOKENI HUI

APPELLANT

AND: COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: WILCOX, WEINBERG AND CONTI JJ

DATE OF ORDER: 5 FEBRUARY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. 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 N961 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LOKENI HUI

APPELLANT

AND: COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: WILCOX, WEINBERG AND CONTI JJ

DATE: 5 FEBRUARY 2001

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

THE COURT: 1 This is an appeal by Lokeni Hui against a decision of a judge of the Court, Hill J, dismissing with costs an application, by way of appeal, brought to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975. 2 The application challenged a decision of the Tribunal, constituted by Deputy President Chappell, to affirm a deportation order made under s 200 of the Migration Act 1958. The deportation order was made by a delegate of the Minister for Immigration and Multicultural Affairs, the respondent to this proceeding, and stemmed from Mr Hui's criminal convictions in Australia. These convictions included convictions for affray and assault occasioning actual bodily harm, in relation to each of which Mr Hui was sentenced to be imprisoned for 12 months, the sentences to be served concurrently. 3 Mr Hui was represented by counsel at the hearing before the Administrative Appeals Tribunal. He was also represented by counsel before Hill J. His counsel put to Hill J numerous arguments in support of his contention that the Tribunal erred in law. All these arguments were rejected, cogent reasons for rejection being give by his Honour. Many of the points were not really arguable. Notwithstanding the reasons given by Hill J, Mr Hui filed an appeal to this Court. 4 However, it appears Mr Hui has been unable to obtain legal representation. Late last year he forwarded to the Court a notice of motion seeking an order that the Court arrange representation for him pursuant to Order 80 of the Federal Court Rules. 5 It was not practicable for the Court to deal formally with this motion before today. On the other hand we appreciated that any decision to utilise Order 80 that might be made today would inevitably involve an adjournment of the hearing, something it would be desirable to avoid. Accordingly, the application for use of Order 80 was informally considered before last Christmas. A preliminary view was reached that this was not a proper case for use of the order. 6 Order 80 does not provide a general system of legal aid. It would be unfair to the legal profession to expect it to cover, on a pro bono basis, all the many cases where litigants appear in person because they are impecunious and have failed to obtain legal aid. Order 80 applies where the Court, or a Judge, considers "it is in the interests of the administration of justice" to refer a particular litigant for assistance under that order. The focus is on the needs of the Court and the proper administration of justice. While it is always helpful to have parties legally represented, the use of Order 80 should be confined to cases of particular need. The preliminary view was taken that this is not a case of particular need. Mr Hui was legally represented before Hill J. Every conceivable point was taken on his behalf and persuasively answered. There seemed to be no particular difficulty in the case. 7 When the matter was called on today, the Court indicated this preliminary view, but nonetheless invited Mr Hui to put submissions on the matter if he wished. He indicated he did not wish to do this. Argument then proceeded on the merits of the appeal. 8 Only one point was pressed. It was suggested by Mr Hui that Dr Chappell erred in law in taking into account the report concerning his children prepared by a child psychiatrist, Dr Brent Waters. The reason for this contention was Dr Waters had not had the opportunity to observe interaction between Mr Hui and the children. 9 There is no doubt Dr Waters did not have that opportunity and that this was a serious limitation on the value of the report. Dr Waters himself acknowledged this. Dr Chappell emphasised the point, in para 84 of his reasons, when he said: "A limitation on Dr Waters report and one that was acknowledged by him was that he'd not been able to observe Mr Hui interacting with either Rickie or Vessie. Such an observation would undoubtedly have added to the value of Dr Waters report but in its absence the Tribunal can only note that the evidence before it revealed only very limited contact between Mr Hui and his two children over the period since the termination of his relationship with Ms Haffenden." 10 This passage was the second occasion upon which Dr Chappell commented about Dr Waters' lack of observation of interaction. The quoted passage is particularly important because it appears in the section of Dr Chappell's decision summarising his conclusions. While we understand the point made by Mr Hui, we do not think it was erroneous in point of law for Dr Chappell to receive and act upon the report; at least provided he bore in mind the limitation conceded by Dr Waters. Accordingly, we do not think there is anything in this point. 11 This is the only point argued and we have not been able to discern for ourselves any other possible error of law. It follows that the appeal must be dismissed. 12 Before leaving the case, we wish to comment on a statement made to us from the bar table by Mr Hui. He informed us that, since completion of his sentence on the criminal charges, he has been held in immigration detention, this being for a period of some 2˝ years. He has not been held in an immigration detention centre, such as Villawood, but in the remand centre of the Silverwater Correction Centre where he has been obliged to associate with prisoners awaiting trial or sentence on criminal charges; no doubt some of them very serious charges. This seems highly undesirable. 13 In the present case, the undesirability of place of detention is compounded by the time it has taken to deal with Mr Hui's challenge to the deportation order. There was an earlier appeal to the Administrative Appeals Tribunal, the Tribunal's decision being set aside by Carr J because of error of law. This error was not Mr Hui's fault but the delay in finalising his case has meant his incarceration in a general gaol for a lengthy period. 14 It would be doubly unfortunate if Mr Hui were now to be charged daily detention fees, which at their standard rate will undoubtedly amount to a figure well beyond his capacity ever to pay; and if this liability was used as a barrier to him being readmitted into Australia at a future date. It should be noted that Dr Chappell accepted that Mr Hui had genuine affection and concern for his children and that the elder child, at least, was interested in maintaining connection with his father. The correctness of Dr Chappell's view about Mr Hui's attitude to his children is perhaps demonstrated by his persistence with the appeal to the Tribunal and subsequent litigation. It seems the children are the only substantial reason for him wishing to stay in Australia. 15 The order of the Court will be that the appeal be dismissed and that the appellant pay the costs of the Minister, the respondent to the appeal. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.