FEDERAL COURT OF AUSTRALIA Wang v Minister for Immigration & Multicultural Affairs [2002] FCA 647 JUDICIAL REVIEW – decision by the Minister to deport a non-citizen under the Migration Act 1958 (Cth) – review of the Minister's decision by the Administrative Appeals Tribunal - whether denial of procedural fairness by the Tribunal – whether the Tribunal ought to have given the applicant the opportunity to comment on an adverse conclusion reached by the Tribunal that was material to their decision – no statement of principle. Migration Act 1958 (Cth), ss 200, 201 Convention relating to the Status of Refugees, article 33 Kioa v West (1985) 159 CLR 550 B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 XIANG DONG WANG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 859 OF 2001 NORTH J 22 MAY 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 859 OF 2001 BETWEEN: XIANG DONG WANG APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: NORTH J DATE OF ORDER: 22 MAY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. the appeal be listed for directions on a date to be fixed. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 859 OF 2001 BETWEEN: XIANG DONG WANG APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: NORTH J DATE: 22 MAY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Mr Wang appeals to this Court against the decision of the Administrative Appeals Tribunal (the Tribunal) made on 25 July 2001. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs (as he was then titled) made on 16 September 1997 to order the deportation of Mr Wang. background 2 Mr Wang is a national of the Peoples' Republic of China. He was born on 29 March 1968. He migrated to Australia on 17 December 1985 with his parents and two sisters. He was then seventeen and a half years of age. 3 Mr Wang's mother is Chinese and his father is Russian and half Jewish. These circumstances caused Mr Wang to have difficulties in China during his childhood. He was teased at school regularly. He had only three to four years schooling. Further, there was evidence before the Tribunal that Mr Wang has an I.Q. of only seventy. 4 When Mr Wang arrived in Australia he fell into bad company and within a short time accumulated a considerable criminal history. the issue 5 Section 200 of the Migration Act 1958 (Cth) (the Act) empowers the Minister to order the deportation of a non-citizen in the circumstances set out in s 201. So far as relevant to this case, those circumstances are: "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; … (c) 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." 6 Mr Wang does not contest that he was convicted of offences for which he has been sentenced to imprisonment for a period of not less than one year, and that, when the offences were committed, he had been in Australia as a permanent resident for a period of less than ten years. 7 However, he contends that the Tribunal erred in law in upholding the deportation order. In order to deal with the argument it is necessary to understand the criminal history of Mr Wang as found by the Tribunal. Criminal history of mr Wang 8 On 3 March 1986, Mr Wang entered premises in Dandenong, Victoria. He there raped a woman in her mid-twenties in her bedroom. Then he carried her out to the lounge-room and raped her again. 9 On 17 September 1986, in New South Wales he broke into the house of Mr and Mr Cheng and stole jewellery and other property. While in the house he raped the sixteen year old daughter of Mr and Mrs Cheng. In his sentencing remarks, Studdert J described the circumstances of the offences as involving "a terrifying ordeal" for the daughter. 10 On 26 September 1986, Mr Wang raped Ms Smith. Studdert J described the circumstances in his sentencing remarks as follows: "Miss Smith, who at the time of the offence was eighteen years of age, was assisting her father on his milk run in the early hours of 26 September 1986. She made a delivery in Baringa Close, Green Valley and was making her way back to the roadway when she was approached by the prisoner. He dragged her at knife point into a nearby park where the offence was committed. … What was done in the park was done at knife point. Miss Smith was dragged some distance into the park and thrown to the ground. Her pants and underclothing were removed and the prisoner put his penis into her vagina whilst he had the knife he was carrying against her neck. After this invasion the prisoner required Miss Smith to fit a condom on to his penis and after another attempt at vaginal intercourse the prisoner turned his victim on to her stomach, pulling her up until she was in a kneeling position and then had anal intercourse. Miss Smith was then pulled further away from Baringa Close and again the prisoner penetrated her anus once more whilst still holding the knife. The prisoner was disturbed by the arrival of Miss Smith's father who pursued him but the prison was able to made good his escape. This was a ruthless sexual attack. … The Court of Criminal Appeal has on many occasions made it clear that the use of a knife in a sexual attack is a serious aggravating circumstance of an offence. … I can only take an extremely serious view of this particular offence." 11 Between the 2 and 19 October 1986, in South Australia, Mr Wang committed a number of burglaries and, in the course of one, raped a young woman. Property valued at about $10,000 was taken. The burglaries were committed while people were sleeping in the target homes. The Court of Criminal Appeal in South Australia described the rape offence as follows: "The rape was also a serious crime of its kind. The appellant broke into the home of the victim and threatened her. He placed his hands around her throat and committed rape upon her. The placing of the hands around the throat must have an utterly terrifying experience for that woman, and is a seriously aggravating feature of the crime. After the rape had been committed the appellant bound the woman and thrust some material into her mouth by way of a gag. In addition to stealing from the house, he took rings from the woman's fingers while she was so bound." 12 Mr Wang was arrested in South Australia on 19 October 1986 following the commission of the offences on that day. He was detained and charged with the South Australian offences. 13 In May 1988, he pleaded guilty to the South Australian offences and was sentenced to twelve years imprisonment. 14 In September 1992, he pleaded guilty to the offences committed in New South Wales relating to the Cheng family, and was tried and found guilty of the offences relating to Miss Smith. He was sentenced to six years imprisonment for these offences. 15 In March 2001, Mr Wang pleaded guilty to the Victorian offences and was sentenced to three years and four months imprisonment. 16 Mr Wang has been in prison since 19 October 1986, and remains there. It seems that he would, but for the deportation, be due for release within the next twelve months. decision of the tribunal 17 After setting out the details of Mr Wang's criminal history the Tribunal recorded its general approach as follows: "It is almost superfluous for me to say that rape of a stranger in her own home is a hideous and appalling offence requiring the strongest possible denunciation and, notwithstanding Mr. Hughan's [counsel for Mr Wang] submissions to the contrary, I am quite unable to take the view that the applicant's sentences viewed globally were verging on the excessive. Nor can it be doubted that, without strongly ameliorating circumstances the applicant's expulsion from Australia is plainly called for." 18 The Tribunal then summarised the arguments put on behalf of Mr Wang as follows: "The applicant submits that taking account of his youthfulness when the crimes were committed, the malign influence of his friends and confederates, his rehabilitation whilst in gaol, the low risk of his re-offending and the hardship both to himself and his family in Australia which his deportation would cause, the exercise of a fair discretion dictates that the application to review should succeed." 19 The Tribunal first considered the risk of Mr Wang re-offending. There was reference to the view of Dr Barry-Walsh, a forensic psychiatrist who provided a report to the sentencing judge in relation to the Victorian offences, that it would be "unwise and speculative" to comment on Mr Wang's risk of re-offending. 20 The Tribunal then referred to evidence and a report of David Anthony Ball, a registered psychologist and specialist in assessment and treatment of sex offenders. The Tribunal said: "Mr. Ball is of the opinion that provided the applicant participates in, and successfully completes, treatment over a minimum period of 9 months with the CORE Sex Offender Program the applicant would present a 'low' risk of re-offending. The applicant has not been accepted into any such program to the present time and an attempt was made to explain this by reference to restrictions which had been applied to him during his various periods of imprisonment rendering him ineligible to do so. A perusal of copies of his prison records (Exhibit A5) fails to disclose that he ever made application for sex offender treatment during the periods of incarceration covered by those records, and two entries (Exhibit R5 dated 18 May 1998 and R9 undated) tend to suggest that he showed little interest in sexual rehabilitation in gaol." 21 Mr Wang convinced Mr Ball that he was genuinely willing to address his offending behaviour. But, the Tribunal recorded, Mr Ball was cautious in attempting to forecast Mr Wang's success because of his childhood experiences in China, his long period of incarceration, his low intelligence, and his limited employment skills and literacy training. 22 The Tribunal then examined the evidence given by Mr Ball to the effect that Mr Wang's sexual offending could be classified as opportunistic. The attacks, Mr Ball said, were "impulsive, typically unplanned and seen as a predatory act, controlled by more contextual factors rather than by any obvious stylised sexual fantasy". The Tribunal observed that Mr Ball may have overlooked the fact that the Victorian offences, to which Mr Wang pleaded guilty, involved entering premises with intent to commit an offence involving unlawful and indecent assault. 23 The Tribunal continued: "More significantly however, Mr. Ball conceded under cross-examination by Ms Quayle [counsel for the Minister] that, without treatment i.e. at the present time, the applicant should be regarded as having a 'high' to 'extreme' risk of re-offending. Whilst I am satisfied by Mr. Ball's evidence that offenders who undergo treatment in the CORE program or similar programs have a substantially reduced risk of re-offending when compared with untreated offenders, I am unpersuaded that the risk posed by the applicant whether treated or not, if released back into the Australian community is one which the female citizens of this country should be expected to accept. As I have already observed, rapes of the kind committed by the applicant are truly dreadful offences which invariable [sic] shatter the lives, and often the relationships, of the victims. He committed serial offences, moving from State to State as he did so. Such patterns of behaviour often make detection and prosecution very difficult. Mr. Ball's opinion of the applicant's likely response to the CORE program was greatly influenced by his belief that the applicant has now shown empathy for the plight of his victims and remorse for his heinous offences. Similar expressions of contrition and regret were made to me by the applicant when he gave evidence. I have very real doubts as to this. I am sure that, despite his low IQ, the applicant has the capacity to understand that expressions of remorse may have significant bearing upon the outcome of these proceedings. Self condemnation is a step along the road to redemption, but it is also a powerful argument in a case such as the present if genuine. The trouble is that actions speak louder than words, and all we have at the moment are the applicant's words. He may well be dissimulating. I am far from satisfied that he is not. However, in the final analysis I come back again to Mr. Ball's opinion viz that at the present time, even accepting the applicant's declarations of empathy and remorse, he constitutes a high to extreme risk. I am in no doubt that the Australian community would regard the applicant as constituting an unacceptable risk whose abhorrent crimes should require his removal. To do so would be likely to constitute a general deterrent to other like minded offenders." [emphasis added] 24 The Tribunal then turned to consider whether the deportation of Mr Wang would cause undue hardship to him or to those members of his family who remain in Australia. It is not necessary to elaborate on the Tribunal's reasoning on this issue except to observe that the Tribunal considered whether Mr Wang would be punished again on his return to China for the offences committed in Australia. The Tribunal also considered whether, as a practising Muslim, Mr Wang would be discriminated against on return to China. 25 Then, the Tribunal said: "It is perhaps worth noting that if the applicant were to apply for a protection visa as a refugee under the United Nations Convention Relating to the Status of Refugees, he would be excluded from protection by virtue of Article 33(2) and its acknowledgment that treaty obligations do not apply to offenders who have been convicted of serious crimes who may be regarded as a danger to the community. In my view the applicant falls within such a category. In my assessment even if treated successfully he poses a very real risk of recidivism. If he does re-offend, knowing as he now does that deportation would inevitably occur, he could represent a danger not only to the physical well being of his victim, but also to her very life. This represents the other side to Mr. Hughan's argument that knowledge of consequences would act as a personal deterrent to the repetition of offending conduct." [emphasis added] 26 Then the Tribunal referred to, and dismissed, the risk of violation of Mr Wang's human rights upon return to China. the amended notice of appeal 27 Leave was granted to the appellant, without opposition from the respondent, to amend the notice of appeal. At the hearing Ms Batrouney SC, who appeared with Mr E Heerey, as pro bono counsel on behalf of Mr Wang, indicated that the main grounds upon which the appellant relies are set out in pars 4(a) and (b) of the amended notice of appeal as follows: "(a) The Tribunal denied procedural fairness to the applicant. Particulars. (i) In the context of considering the issue of the Applicant's risk of recidivism, the Tribunal concluded that if the applicant was to re-offend knowing as the Applicant does that deportation would inevitably occur, he could represent danger to the very life of his supposed victims. (ii) This conclusion was made as a matter of speculation by the Tribunal and was unsupported by any evidence before the Tribunal. (iii) This conclusion was adverse to the Applicant and was made without giving to the applicant an opportunity to present arguments on the basis of the evidence before the Tribunal to contradict that conclusion. (iv) This conclusion was significant in the Tribunal's decision to exercise the discretion pursuant to section 200 of the Act adversely to the applicant by reference to both the risk of recidivism posed by the applicant and the relevance of international obligations. (b) There was no evidence or other material to justify the conclusion that if the applicant was to re-offend, he could represent a danger to the life of his victim." 28 The only other grounds relied upon are set out in pars 4(d) (failure to give genuine, proper or realistic consideration to considerations required to be taken into account in making the decision) and 4(e) (taking into account irrelevant considerations in making the decision) of the amended notice of appeal. Ms Batrouney preferred to postpone argument on these other grounds in order to consider certain observations made by the Court. The respondent did not oppose this course. Consequently, these reasons only address the grounds in pars 4(a) and (b) of the amended notice of appeal. The ARGUMENT ON APPEAL 29 The appellant agreed that the principles to be applied in determining whether procedural fairness was accorded by the Tribunal were correctly set out in the respondent's written submissions as follows: "(i) the applicant was entitled to put information and submissions to the AAT in support of the application; (ii) the applicant was entitled to an opportunity to rebut or comment upon any adverse material from other sources on which the AAT proposed to rely; (iii) the AAT was not obliged to notify the applicant of its mental processes or provisional views before making its decision, or to make the applicant's case for him; (iv) the AAT was required to inform the applicant of the 'gravamen or substance' of any critical issues on which the decision might turn, which were not apparent from the nature of the power or the terms of the Act and be given a 'meaningful opportunity to respond': Nguyen v MIMA [2001] FCA 887 at 22 per Sackville J; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 per Merkel J. (v) the AAT was required to advise the applicant of adverse conclusions that had been arrived at which are not obviously open on the known material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 101-3, 107, 108-9, 119-120; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 555-557. In approaching this particular requirement of procedural fairness, the Court must be cautious not to overstep the line between judicial review and merits review. Procedural fairness does not require a decision-maker to reveal all adverse preliminary conclusions or mental processes: see Alphaone at 592 and Aronson & Dyer Judicial Review of Administrative Action, 2nd ed 2000 at 425." [emphasis added] 30 Ms Batrouney directed argument to the conclusion which the Tribunal expressed as follows: "If he does re-offend, knowing as he now does that deportation would inevitably occur, he could represent a danger not only the physical well being of his victim, but also to her very life." 31 She contended that the Tribunal here concluded that the risk which Mr Wang poses is that, if he were to commit rape again, he could also commit murder. She argued that this was a critical issue on which the decision might turn. In order that Mr Wang be given a meaningful opportunity to respond, the Tribunal was bound to inform him of the issue. Put slightly differently, it was said that the conclusion was adverse to Mr Wang, and it was not obviously open on the known material. Consequently, the Tribunal was bound to advise Mr Wang of that possible conclusion. 32 Mr Mosley, who appeared as counsel for the respondent, contended that the Tribunal's conclusion was simply the answer to the appellant's own argument that he would be unlikely to re-offend because he was aware that to do so could place him at risk of deportation. The Tribunal expressed the conclusion which is criticised by the appellant by reference to the argument put on behalf of Mr Wang. The conclusion, therefore, flowed naturally from the known material. 33 Further, Mr Wang had threatened the life of his victims in two of the four rapes that he had committed. These facts justified the conclusion that Mr Wang could endanger the life of any future victim. The conclusion expressed by the Tribunal, again, naturally flowed from the known material. 34 Finally, the respondent contended that the conclusion that Mr Wang may commit murder was not critical to the decision because the Tribunal had already come to the conclusion that he presented too high a risk of recidivism. This conclusion was reached in par 22 of the Tribunal's reasons extracted in par 23 of these reasons. The conclusion regarding the danger of murder was arrived at in par 27 of the Tribunal's decision in another context, namely, in considering whether Mr Wang would fall within the terms of the United Nations Convention Relating to the Status of Refugees (Refugee's Convention). 35 Mr Mosley drew attention to the fact that the finding was that Mr Wang could, not would, endanger the life of any future victim. consideration 36 The conclusion concerning the risk of Mr Wang committing murder is expressed in par 27 of the Tribunal's reasons in a discussion about whether Mr Wang would fall within article 33 of the Refugee's Convention. The discussion occurs after the Tribunal has considered the risk of recidivism. However, while par 27 commences with the reference to the Refugee's Convention, the subject of discussion turns to the question of recidivism half way through the paragraph. A fair reading of the final three sentences of the paragraph is that it relates to the question of the risk of recidivism. Indeed, such discussion is consistent with the subject initially under consideration, namely, the availability of the protection of the Refugee's Convention to Mr Wang. It is not possible to ignore the Tribunal's comments about the risk of recidivism at this point in the decision even though the comments are perhaps out of a strict logical sequence. 37 It is likely that the earlier conclusion expressed in par 22 of the Tribunal's reasons that there was a risk that Mr Wang would re-offend, was informed by, and reflected, the view later expressed that Mr Wang could commit murder. 38 It is not necessary that the Tribunal actually relied upon the risk of Mr Wang committing murder in reaching its conclusion. It is enough that there is a real risk of prejudice to Mr Wang flowing from the Tribunal considering this adverse factor without allowing Mr Wang a chance to respond to it, whether by further expert evidence or otherwise. As Brennan J said in Kioa v West (1985) 159 CLR 550 at 629: "It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par. 22 was apparently credible, relevant and damaging. The failure to give Mr. Kioa an opportunity to deal with it before making an order that Mr. and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed." See also B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 at 336-7; and Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 at 499-501. 39 The next question, then, is whether the conclusion that Mr Wang could commit murder flowed naturally from the known material. It was unnecessary for the Tribunal to draw to Mr Wang's attention that it was considering the risk that he would again commit rape and, indeed, violent rape. For the Tribunal to consider that question flowed naturally from the criminal history of violent rapes committed by Mr Wang. However, for the Tribunal to consider that Mr Wang might offend by committing murder is to raise the level of seriousness of the criminal conduct to a significant degree. This is not, of course, to suggest that violent rapes are not serious. But it is to say that to consider that there is a risk of Mr Wang committing murder does not flow naturally from the circumstances, even though violent, of the rapes for which he was convicted. The suggestion that there was a risk that Mr Wang could commit murder was different enough in nature from the risk that he would commit violent rape that it should have been put to Mr Wang in order to give him the opportunity to respond to it, whether by further expert evidence or otherwise. 40 For the same reason, the conclusion that the risk of Mr Wang committing murder did not naturally follow from the argument raised by Mr Wang's counsel that he would not rape again because he would fear deportation. The subject addressed was the risk that Mr Wang would re-offend by committing rape. If the Tribunal intended to consider the risk that he would re-offend by committing murder, Mr Wang should have been alerted to the argument, and given an opportunity to answer it, whether by further expert evidence or otherwise. conclusion 41 It follows from the above reasoning that the appellant has established the ground set out in par 4(a) of the amended notice of appeal. The appeal must be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal to be heard and decided again. 42 As earlier mentioned, the parties agreed to postpone argument on grounds 4(d) and (e) of the amended notice of appeal. If the respondent intends to appeal against the orders which I have foreshadowed, it is probably desirable that I determine the remaining arguments. However, the parties should discuss the future course of the appeal. In the meantime I will not formally make the orders indicated. The matter will be listed for directions on a date to be fixed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 22 May 2002 Counsel for the Appellant: Ms J Batrouney SC, with Mr E Heerey Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 March 2002 Date of Judgment: 22 May 2002