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Federal Court of Australia |
Last Updated: 15 February 2000
Cong Tam Dang v Minister for Immigration & Multicultural Affairs [2000] FCA 73
MIGRATION - Deportation of non-citizens who have committed serious crimes - the requirements of the Ministerial Policy - the need to balance all relevant considerations - a two-stage process not required - whether the Tribunal substituted its own opinion for those of experts - whether the Tribunal breached "natural justice" by not alerting the applicant's representatives to the adverse view it had taken of certain evidence in the applicant's case - whether language used by the Tribunal created an apprehension of bias
Migration Act 1958 (Cth) ss 200 and 201
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Gascor v Ellicott [1997] 1 VR 332 applied
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 followed
Re Gogebakan v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544 referred to
Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 145 referred to
Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088; (1998) 86 FCR 483 referred to
Marelic v Comcare (1993) 121 ALR 114 distinguished
Meadows v Minister for Immigration and Multicultural Affairs (1999) 54 ALD 654 distinguished
CONG TAM DANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 157 OF 1999
DRUMMOND, MATHEWS AND MANSFIELD JJ
15 FEBRUARY 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 157 OF 1999 |
BETWEEN: |
CONG TAM DANG APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
DRUMMOND, MATHEWS AND MANSFIELD JJ |
DATE OF ORDER: |
15 FEBRUARY 2000 |
PLACE: |
SYDNEY |
1. The appeal be dismissed.
2. The appellant 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 |
N 157 OF 1999 |
BETWEEN: |
CONG TAM DANG APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
DRUMMOND, MATHEWS AND MANSFIELD JJ |
DATE: |
15 FEBRUARY 2000 |
PLACE: |
SYDNEY |
DRUMMOND J:
1 I agree that this appeal should be dismissed, generally for the reasons given by Mathews J.
2 However, I wish to explain why I would reject as unfounded the ground of appeal suggesting bias on the part of the Administrative Appeals Tribunal member. This ground was raised for the first time, by leave, at the hearing of the appeal.
3 This attack on the Tribunal's decision was based on the learned primary judge's comments set out in Mathews J's reasons. The appellant here submitted:
"... that the language used by the AAT as summarised by the trial judge, for the reasons given by his Honour, creates the apprehension of bias and would do so in the fair-minded observer."
4 No complaint was made in the proceedings before the learned primary judge about the Tribunal's language. What caused his Honour to comment on it was his concern that it "may well have been seen by the applicant and his family as coloured". I understand from his Honour's comments that he was concerned that the appellant and his family may have thought that the member's words were tinged with racial prejudice.
5 If the appellant (or his family) were concerned that the Tribunal may have been biased against him because of his ethnicity, it is highly unlikely that that would not have been raised as an issue in this Court at first instance. The appellant, understandably, is very keen to avoid deportation. His family has been closely involved in the litigation, supporting his attempts to do that. If any of them had felt concern that the appellant had not had a fair hearing, they could be expected to have raised that with the appellant's lawyers. He was legally represented before the learned primary judge by the same counsel and solicitor who represented him in the Tribunal: if it had occurred to the lawyers that there might be an argument that the Tribunal's choice of expression showed actual or apprehended bias, instructions to take the point would undoubtedly have been forthcoming.
6 The Tribunal's decision was given against a background of evidence that included the fact that information was provided by the appellant's father to the sentencing judge about there being violence within the Vietnamese community that included, on occasion, home robberies like that in which the appellant was involved. The psychologist selected by the appellant and his advisers to give evidence supporting his case referred to her own extensive experience of the prevalence of crime in the Vietnamese community here. The appellant himself spoke of the viciousness of Vietnamese criminals in being prepared to harm the family members of a person informing on them as his explanation for not revealing the identity of his co-offenders. This was a modus operandi not only described by the appellant, but also by the psychologist. In answer to a question about why the appellant would think his family would be in danger, she said:
"Because that's the way I think the gangs work. They - I mean, I hear this all the time in prison."
and, a little later on the same topic:
"... that's fairly typical of retribution techniques, to involve family and to make threats against family. And he [the appellant] would have known that."
7 The Tribunal's language, in large part, reflects those unpleasant features of life in the appellant's community about which he and his witnesses had no difficulty speaking, in frank terms.
8 It is understandable, against this level of awareness by the appellant, his father and the appellant's own expert witness of the existence of fairly extensive criminal activity, of which gang viciousness was a feature, within that part of the Vietnamese community in which the appellant and his family live here, that the appellant did not complain about the Tribunal's language until the possibility of making something of it, to his advantage, was presented by the learned primary judge's comments.
9 It is, in my opinion, highly likely that neither the appellant nor his family was troubled about the impartiality of the Tribunal, given all this evidence about crime in the appellant's own community and given the Tribunal member's concern to ensure that the appellant had every opportunity to seek out evidence favourable to him: the hearing was adjourned at the member's suggestion and the appellant made use of the adjournment to obtain reports from the probation officer and the psychologist.
10 The belated attack on the Tribunal's decision as infected with bias is very likely an opportunistic adoption of concerns felt only by the learned primary judge. But it must now be dealt with. No question was raised by the respondent of waiver by the appellant of any right to complain of bias by the Tribunal.
11 The complaint made in reliance on his Honour's comments is of apprehended, not actual bias. In Gascor v Ellicott [1997] 1 VR 332, Tadgell JA, with whom Brooking JA agreed, said, at 340:
"There is no suggestion in this case of actual bias. The question of apprehended bias as a disqualification from adjudication in a court of law was most recently considered by this court in Rozenes v Kelly [1996] 1 VR 320. As it was there stated at 329 the essential issue in such a case is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matters before him."
12 The question in Gascor was whether an arbitrator should be removed before he embarked on the hearing. But this approach is equally applicable to determining whether a decision should be set aside because the decision-maker breached the rule of natural justice or procedural fairness that requires a fair and unprejudiced mind on the part of the decision-maker.
13 The fair-minded observer, in considering whether the Tribunal member may have breached this rule, would be taken to have regard not just to the Tribunal's reasons for decision, but also to the evidentiary background against which that decision was made and to which I have referred. There would also be imputed to such an observer knowledge of the Tribunal's concern to ensure the appellant was given the opportunity, of which he took advantage, to call expert evidence that might assist his case, that the appellant had the same legal representatives in the Tribunal as in this Court at first instance and that no concern was expressed by or on behalf of the appellant about the Tribunal's choice of expression until a complaint based on the learned primary judge's comments was made at the hearing of the appeal.
14 In my opinion, a fair-minded lay observer with knowledge of these objective facts would dismiss the suggestion that the Tribunal member may not have brought an impartial and unprejudiced mind to the task of deciding the appellant's case.
15 The appellant also relies on the comments the learned primary judge made about certain parts of the Tribunal's reasons as support for his claim of bias on the part of the Tribunal.
16 When the Tribunal's comments immediately following its reference to "home invasion" as "an introduced crime" are looked at, it is apparent that the Tribunal was not suggesting that it was a crime confined to people with particular ethnic backgrounds: the member, not surprisingly, understood that perpetrators of this offence are spread across the Australian community. It would appear that the Tribunal member was seeking to convey the view that home invasion was a relatively new or recently introduced type of crime, not that it was an offence brought to Australia by any particular immigrant group or groups.
17 The Tribunal's reference to the appellant's local "Vietnamese Mafia" was the member's own expression and, as the learned primary judge observed, not one used by any witness. But given the evidence from the appellant and the psychologist of Vietnamese gangs using methods to silence informers similar to those reputedly used by the Sicilian mafia, the Tribunal member's choice of that expression cannot be said to provide evidence of bias.
18 His Honour also referred to the Tribunal's comment on the evidence of the psychologist, which he said "on one view, may be thought to imply that Vietnamese males have some inherent predisposition to commit crime". I read the Tribunal's comment as confined to young immigrant Vietnamese males who get into trouble with the law, not as a comment of general application to all Vietnamese males. The member was here explaining why he did not accept the psychologist's opinion as sufficient assurance that the appellant would not re-offend, despite his now being thirty years old. More precision by the member in conveying this idea would ensure it could not be open to the reading referred to by the learned primary judge. But I do not think the fair-minded lay observer would find in the member's words, in the context in which they were uttered, any evidence of possible racial prejudice.
19 In some respects, the Tribunal member may not have used the language of measured restraint. But this Court's authority is confined to correcting errors of law by the Tribunal: the member's choice of expression falls far short of establishing a reasonable apprehension that the Tribunal member was biased against the appellant. There is no appealable error of law in his decision.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. |
Associate:
Dated: 15 February 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 157 OF 1999 |
BETWEEN: |
CONG TAM DANG APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
DRUMMOND, MATHEWS AND MANSFIELD JJ |
DATE: |
15 FEBRUARY 2000 |
PLACE: |
SYDNEY |
MATHEWS J:
20 This is an appeal from the judgment of a single judge of this court dismissing an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of the respondent's delegate ordering the deportation of the appellant under s 200 of the Migration Act 1958 (Cth) ("the Act").
21 The appellant was born in Vietnam. He came to Australia with his family in December 1984 when he was 15 years old. On 20 December 1988 he participated in a serious criminal offence and was later convicted of two counts of robbery in company. He was sentenced in the New South Wales District Court to a minimum term of 8 years imprisonment on each charge with an additional term of 23 months.
22 The appellant had committed previous offences, as I shall detail later, but the offence of December 1988 was the first (and only) offence which attracted the deportation provisions of the Act. On 9 June 1997 a delegate of the respondent ordered that the appellant be deported from Australia. The appellant sought AAT review of that decision but on 12 June 1998 Dr Gerber, a Deputy President of the Tribunal, affirmed the delegate's decision. The appellant appealed to a single judge of this court who dismissed the appeal. The appellant then appealed to this court relying upon most of the grounds of appeal that were before the primary judge. He also sought leave to rely upon certain additional grounds, as I shall detail later. Leave was granted to rely on all but one of these additional grounds.
The Appellant's Background
23 The appellant was born in Vietnam on 18 December 1968. His youth, before coming to this country, was marked with considerable deprivation and hardship. In December 1984 he and his family arrived in Australia on refugee visas. The family unit consisted of himself, his parents and four younger siblings, being three sisters and a brother.
24 The appellant's criminal record commenced in December 1986 when he was convicted of assault and placed on a 12 months good behaviour bond. In September 1987 he was convicted of assault and stealing and was fined $500 and $300 respectively. At around this time, in 1987, he was twice the victim of shooting incidents in the Cabramatta area, where he and his family were then living. According to his account, he was, on each occasion, the innocent victim of random events. He happened to be in the wrong place at the wrong time. The first incident occurred, he said, as he was walking down the street in Cabramatta. A fight had broken out on the other side of the street and when shots were exchanged he was hit by a stray bullet. On the second occasion, he was staying with friends when the doorbell rang. He opened the door and was shot several times, apparently being mistaken for someone else.
25 The Tribunal, not surprisingly, was unconvinced by the appellant's account of these incidents. It considered it likely that neither of these shootings was "accidental" in the sense described by the appellant. In this regard the Tribunal made the following comment:
"I am satisfied that he had been involved in the local culture of violence and crime for some time. While he may not have been aware of the exact identity of the people who shot him, he was well aware that it was as a consequence of the lifestyle he adopted and the choice he made to throw in his lot with the local criminal underworld."
26 The appellant's parents became concerned about the violence of the appellant's environment. After the second incident, the whole family moved to Brisbane. However not long afterwards the appellant returned, alone, to Cabramatta. His explanation for this move, namely that he needed to find out who had shot him, was highly implausible and was not accepted by the Tribunal. It was not long after his return, on 20 December 1988, that the deportable offence was committed. This offence was categorised by the Tribunal as a "home invasion", and there is no doubt that it was a particularly serious offence. A group of five armed and masked young men broke into a home at Cabramatta where they terrorised the occupants, a family of two parents and four children aged from 2 to 14 years. They threatened them with violence and loaded the family's valuables into the family car which was then driven away by the appellant. The appellant's role consisted, it seems, of removing the flyscreen at the home so that his co-offenders could gain entry, and later driving them away. There was no evidence that he himself entered the house, although he must have known that his masked companions were up to no good.
27 After this offence the appellant went to Melbourne. In March 1989 he was convicted in the Melbourne Magistrate's Court of stealing a motor car and possessing a prohibited weapon. In relation to each charge he was placed on a good behaviour bond. As he left the court after this hearing he was arrested and extradited to the New South Wales to stand trial upon charges relating to the offence of 20 December 1988.
28 After a trial in the District Court of New South Wales the appellant was convicted on 3 May 1990 of two counts of robbery in company. There being no evidence that the appellant knew that his co-offenders were armed when they entered the house, he was acquitted of a further charge of armed robbery. But the conviction for robbery necessarily implies that he was a party to the use of force or threats of force by his co-offenders. On 8 June 1990 Judge Gibson of the District Court sentenced the appellant to a minimum term of 8 years imprisonment on each charge, commencing on 22 March 1989 and expiring on 22 March 1997. An additional term of 23 months was imposed, commencing on 21 March 1997. A subsequent appeal was dismissed by the Court of Criminal Appeal.
29 The appellant's early time in prison could be categorised as turbulent. However on all accounts he underwent a behavioural change during the course of his sentence and during the latter part he undertook some vocational courses and generally kept out trouble. He was released from prison on 20 March 1997. On 9 June 1997 the Minister's delegate made the deportation order. The appellant sought AAT review of this decision. On 12 June 1998 the Tribunal affirmed the delegate's decision.
The Tribunal's Decision
30 After making some preliminary observations, the Tribunal in its decision set out what it viewed as its task in the proceedings:
" A deportation order, sending a person back to another country, more often than not has serious consequences for the family of that person and more particularly for the person deported, particularly where he or she may no longer have any connections with that country, may not speak its language, and no longer has any immediate family there to help in the re-integration of that person that country [sic]. It follows that when considering an appeal against a deportation order, a tribunal seized of the matter must carefully weigh up the issues for and against deportation, looking for any extenuating circumstances which may tip the balance in favour of allowing the appeal and permitting that person to remain in Australia. Thus on the one hand, the tribunal must have regard to the potential hardship to the applicant if deported, the effect of his or her deportation, on his or her immediate family, particularly if there are young children involved as well as the potential benefit the Australian community may derive from his or her continued presence in this country, to name but a few. On the other side of the scales, the Tribunal must have regard to the national interest, including Australia's criminal deportation policy, the need for the protection of its citizens, assessing the potential or likely cost to the community in permitting the person to remain in this country - and by `cost' I am not simply looking at the issue in dollar terms, but on a broader basis. Thus, if the person, for example, has a bad criminal record, is he or she likely to re-offend if permitted to stay."
31 The Tribunal went on to describe the appellant's background, his various criminal offences and the circumstances of the robbery of December 1988. It categorised this offence as a "horrendous crime known as `home invasion'". On a number of occasions the Tribunal described the offence as a "horrendous crime": this was an appropriate description of an offence which involved, among other aggravating features, one of the appellant's co-offenders terrorising the adult victims into submission by slashing the feet of their two year old daughter. The Tribunal then proceeded to explore the factors which, as the Tribunal put it, "support upholding the Delegate's decision to deport the applicant".
32 In this context the Tribunal rejected the appellant's account that his participation in the robbery was procured by threats from his co-offenders. The Tribunal referred to a number of different explanations which the appellant had given as to how he came to be involved in this crime. The Tribunal found that the appellant was aware that his co-offenders were intent on engaging in "home invasion", and was "keenly alive to the possibility that these gangsters would resort to violence". The Tribunal went on to emphasise the seriousness of this crime and to express concern at the fact that the appellant had refused to identify his co-offenders. The Tribunal's decision quoted from the sentencing Judge's observations on sentence, and particularly the Judge's opinion that "this type of offence falls towards the top of the range of robbery in company, which carries the maximum sentence of 20 years".
33 The Tribunal concluded this part of its judgment with the following observation:
" It may be said that looking at his criminal record, the term `gangster' is not an inappropriate description of Dang, and if nothing more were known about him, it seems to me that his deportation would not constitute a great loss to this country. Having observed him closely in the witness box, I have not been persuaded that he is even now fully conscious of the horrendous nature of the crime he has committed, or that he feels any genuine remorse for the suffering he has inflicted on the Trinh family. On the contrary, he strikes me as callous, with a blunted sense of right and wrong and with little regard for the feelings of others. His statement that he is now able to distinguish right from wrong is a little too pat to be persuasive." (AB p 466)
34 The Tribunal then proceeded to consider the factors which would support setting the deportation order aside. It referred to the appellant's family background and described him as coming from "a decent, hard working family which, apart from the appellant, may be described as model migrants". It referred to the fact that the appellant had spent approximately half of his life in this country but pointed out that, as a matter of law, he was still liable to deportation if the circumstances otherwise warranted it. The Tribunal declined to make adverse findings in relation to the appellant's conduct whilst in prison. It referred to the appellant's employment and observed that he had made every effort to find and hold down gainful employment.
35 At this point in its decision, the Tribunal gave the following description of what had occurred during the course of the hearing before it.
"At the end of the evidence and before submissions, I indicated that the consequences for the applicant and his family in this case were so serious, that I would be reluctant to reach a final determination based merely on his criminal record and the evidence of family members on the likelihood of rehabilitation. I stated I would find it helpful if I had a report from Dang's probation officer, as I considered that this was not only vital in assessing his history since release from jail [sic], but might ultimately tip the balance in his favour."
36 The hearing was accordingly adjourned and relisted sometime later. At the adjourned hearing reports were tendered and evidence given by the appellant's parole officer, Mr Dinh, and a psychologist Ms Robilliard. The way the Tribunal dealt with this evidence was the subject of a ground of appeal and will be discussed later. Suffice it to say here that, insofar as the witnesses purported to paint the appellant in a favourable light, the Tribunal expressed serious reservations about the conclusions they had drawn.
37 Finally, the Tribunal affirmed the delegate's decision. In doing so, it concluded that it was "possible" that the appellant would re-offend. The Tribunal regarded this as posing an unacceptable risk to the Australian community, and as outweighing any competing considerations. The Tribunal's reasoning in this regard gave rise to a ground of appeal, and I shall be discussing it later.
38 The appellant appealed from the Tribunal's decision raising, as grounds of appeal, that the Tribunal erred in the tests it applied when deciding that the appellant should be deported, that the Tribunal failed to take relevant considerations into account, and that the Tribunal's decision was marked by unreasonableness in the Wednesbury sense.
Reasons for judgment of the Primary Judge
39 His Honour in his judgment described the appellant's background and set out the manner in which the Tribunal had reached its decision. Before turning to discuss the grounds of appeal, his Honour made some general observations about the language in which the Tribunal's decision was couched. It would be fair to say that the Tribunal had employed colourful language in its decision. His Honour expressed concern about some aspects of this language, particularly terms such as "gangsters", and "mobsters" and certain observations the Tribunal had made about criminality amongst young Vietnamese males. Perhaps as a result of his Honour's observations, an additional ground of appeal was raised by the appellant in this Court namely that there was perceived bias on the part of the Tribunal. I shall be discussing this aspect of the Tribunal's decision later.
40 His Honour then turned to discuss the various grounds of appeal. The first ground was that the Tribunal had erred by considering that even a remote possibility of recidivism constituted an unacceptable risk to the Australian community. The appellant had sought to extrapolate from the Tribunal's reasoning that it had proceeded upon the basis that deportation is the prima facie result for any conviction for a deportable offence. His Honour pointed out that this was not the purport of the Tribunal's findings and that the Tribunal's comments were in accordance with authority. (See Re Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36 at 38).
41 It was then submitted before his Honour that the Tribunal had applied the wrong test as to whether to deport. The appellant relied upon the observations of French and Drummond JJ in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 211 ("Gray"). It was suggested that this case was authority for the proposition that the process of balancing competing considerations under the Ministerial Guidelines necessarily involves a two step process. In addition it was suggested that the Tribunal had entirely discounted the effect the appellant's deportation would have on himself and his family. His Honour rejected this suggestion, pointing out that the Tribunal had of its own motion adjourned the hearing so that evidence could be given as to the impact upon the appellant and his family of a deportation order. His Honour did not accept that Gray required that there be a two-stage balancing process in deportation cases.
42 The next ground of appeal was that the Tribunal had failed to take relevant considerations into account. It was suggested that the Tribunal had not addressed evidence relating to the appellant's rehabilitation or his contribution to the Australian community. However, his Honour pointed out that both matters had been expressly addressed in the Tribunal's reasons for decision.
43 Finally the appellant urged before his Honour that the Tribunal's ultimate finding was tainted with Wednesbury unreasonableness in that it was based upon a number of factual findings which were not reasonably open upon the evidence. In this regard a number of matters were ventilated before his Honour who commented that some of the findings made by the Tribunal could be characterised as not reasonably open on the evidence. However there being evidence before the Tribunal to support each of them, his Honour concluded that the Tribunal's decision was not attended with a reviewable error of law. He thus dismissed the application. He declined to make any order as to costs.
The grounds of appeal
44 The appeal to this Court relied upon all but one of the grounds which were before his Honour. In addition certain new grounds were raised. Under the heading that the Tribunal had failed to take relevant considerations into account, three new particulars were relied upon. In addition, two further grounds of appeal were raised, one of them claiming that the Tribunal had taken irrelevant considerations into account and the other asserting that the Tribunal had breached the rules of natural justice.
45 In relation to all but two of the new matters raised on appeal, the respondent consented to the appellant being granted leave to rely upon them. Leave was therefore granted. In relation to one of the matters to which the respondent objected, leave was also granted. In relation to the other, leave was refused, the appellant having failed to put adequate material before the Court in support of the new ground, and the respondent having demonstrated that actual prejudice would be sustained if leave were granted.
The Statutory Framework
46 The applicable provisions of the Act are ss 200 and 201. They provide as follows:
"200. Deportation of certain non-citizensThe Minister may order the deportation of a non-citizen to whom this Division applies.
201. Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes
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
(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(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."
The relevant policy
47 The relevant policy is contained in a statement of the Minister effective as at 24 December 1992. As relevant here, it is as follows:
"7. Consistent with Government policy, most weight should be given to the need to protect Australian society. Conversely, less weight should be given to the views of the offender and that person's family and associates, and to the possibility of adverse consequences for them of deportation.8. The Government recognises Australia's obligations under international law, particularly to the International Covenant on civil and Political Rights. However, the Government is mindful of the need to balance a number of very important factors, especially:
* the need for community protection against criminal behaviour;
* the requirement to take into consideration the legitimate human rights of an individual;
* the need to protect the rights of other persons, including the family of the person concerned; and
* the need to avoid discrimination when making deportation decisions.
Guidelines for deportation
9. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family.
10. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences.
11. Deportation of a person convicted of crime any be appropriate when a person:
* constitutes a threat because there is a risk that he/she will commit further offences if allowed to remain; or
* has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or
* has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia.
..........
19. The most important broad criteria on which judgements will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:
* the nature of the offence as outlined in paragraph 12 and the length of sentence imposed by the court;
* the person's previous general record of conduct. The total criminal history of a person should be given significant weight in making a decision to deport. A person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning, will be given serious weight in consideration of his case. A person with several previous convictions against Australian society should usually be judged in the light of that past behaviour;
* the risk of further offences;
* the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably expected to make;
* the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia.
* the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected;
* any unreasonable hardship the offender would suffer;
* ties with other countries;
* the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government;
* the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons.
This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.
20. A sensitive issue concerns the liability for deportation of an adult who arrived in Australia as a minor. It is not the Government's intention that such
people should never be deported. Where these is a pattern of criminal
behaviour indicating a likelihood that the person will commit further serious crimes, deportation should be seriously considered."
48 At this stage I propose to deal separately with each ground of appeal in the sequence that they were argued before us.
Did the Tribunal apply the wrong test?
49 The issues raised under this head were contained in the first and fifth grounds in the amended notice of appeal. The first matter of complaint arose from the following comments and conclusions made by the Tribunal towards the end of its decision.
"On the whole of the evidence, I am satisfied that this man poses an unacceptable risk to this community if permitted to stay in this country. Dang is clearly a man above convention, especially the tiresome sort, like telling the truth and refraining from theft and other criminal activities. [sic] It follows that I am unable to accept that the intervening years have succeeded in reforming his fundamental character. His history confirms my impression that he is a weak-willed individual, easily led by others. In his younger years he considered it `cool' to be involved with the gangs that roam through Cabramatta and given his propensity for associating with undesirable and shady characters, I consider that it is possible that he will revert to a life of crime. Even accepting the diagnosis of Post Traumatic Stress Disorder as the precipitating event which led this man to commit the crime of home invasion (as to which diagnosis I entertain the greatest doubt), Ms Robilliard was not prepared to give sufficient assurance that without prolonged treatment, `given the right trigger' Dang would not be out of control again. Nor does Ms Robilliard's diagnosis explain Dang's earlier criminal behaviour, that is, his violent conduct before he was shot. It is not good enough to say that this behaviour is consistent with young men of Vietnamese extraction sharing a similar background. Once I consider that recidivism is a possibility, even a remote one, given Dang's predisposition to violence, his quite apparent lack of genuine remorse, and the kind of criminal conduct that he has engaged in the past and may return to, I find permitting him to remain in this country to constitute an unacceptable risk. This is not outweighed by any apparent minor degree of rehabilitation that may have been achieved, as demonstrated by his lack of re-offending since his release from prison and his ability to gain and retain employment.I am conscious that the effect of my decision will have a major impact on the family dynamics, particularly if the father is determined to accompany Dang back to Vietnam. This is unfortunate and regrettable, but, alas, cannot be put in the balance once I am satisfied that the Australian community continues to be threatened by this man's continued presence in this country. It is no answer to say, as does Mr Jeans, his solicitor, `that the deportable offence is not one of the examples of serious offences given by paragraph 12 of the Ministerial Policy as those that might render a person liable to deportation.' Given the nature and savagery of this offence, it should certainly be included as justifying deportation."
50 According to Mr Godwin, who appeared for the appellant on the appeal, these passages make it clear that the Tribunal was applying the wrong test. The Tribunal effectively treated the risk of recidivism as the sole determining factor in the case, and thus excluded from its consideration any offsetting considerations, such as the effect of deportation on the appellant and his family or the potential contribution that the appellant could make to the community. The Tribunal thus failed to balance competing considerations as required under the policy. Moreover, Mr Godwin submitted that in order for the correct test to be applied in deportation cases, a two stage balancing process is required. First, the Tribunal must assess the benefits and detriments to the Australian community which would result from deportation. If there is a net benefit then the Tribunal will move on to consider hardship to the potential deportee. In this regard the appellant relied upon the following observations of French and Drummond JJ in Gray at 211: "The purpose of deportation set out in par 6 of the statement, required a consideration of the benefit accruing to the community as a whole from Gray's removal and if there were a net benefit, then setting that off against the hardship to him and others."
51 However this passage when read in context, does not impose on decision-makers the obligation to embark on two separate balancing processes, as suggested by the appellant. What it does require is that there be a weighing exercise, with considerations favourable to potential deportees being balanced against those which support deportation.
52 The matter does not end there, for Mr Godwin urges that it is clear from the passage in the Tribunal's decision, quoted above, that the Tribunal did not conduct a balancing exercise at all. In particular, Mr Godwin relies upon that part of the decision where, in discussing the appellant's family dynamics, the Tribunal commented: "This is unfortunate and regrettable, but alas cannot be put in the balance once I am satisfied that the Australian community continues to be threatened by this man's continued presence in this country". (emphasis added) The appellant claims that the Tribunal in this passage was expressly declining to take any account of the impact of deportation on the appellant's family, and that it thus failed to conduct the balancing act which is required under the ministerial policy. Mr Godwin conceded that if the words emphasised in the quoted passage (namely the words "be put in") had been replaced by a word such as "tilt" he would have had no cause for complaint.
53 It is well established that appellate courts should not adopt an unduly critical approach in analysing the reasons for decision of administrative decision makers, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Kirby J said at 291:
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."
54 A fair reading of the Tribunal's reasons for decision shows that there is no substance in the appellant's complaint. Indeed, as already mentioned, the Tribunal adjourned the proceedings because of its concern as to the consequences of deportation upon the appellant and his family, so that further material could be put before it on these matters. In the event, the evidence which was later adduced was of little assistance to the appellant. But that is not to the point. It is apparent that the Tribunal was well aware of its obligation to balance competing considerations. Indeed it proceeded to do so, but found them overwhelmingly one-sided.
55 The remaining complaints relating to the approach adopted by the Tribunal can be dealt with shortly. They are: first, that the Tribunal in conducting its balancing process wrongly placed the Ministerial policy on one side of the scales; and secondly, that the Tribunal treated the proceedings as an appeal from the delegate's decision rather than as de novo merits review.
56 In support of the first complaint, the appellant relied upon a passage, quoted earlier in this judgment, in which the Tribunal, at the outset of its reasons for decision, set out the issues to be considered in cases involving criminal deportation. The Tribunal, it will be remembered, referred to matters of hardship to the appellant, and the potential benefit to the Australian community of the appellant remaining here. The Tribunal continued: "on the other side of the scales, the Tribunal must have regard to the national interest, including Australia's criminal deportation policy, the need for its protection of its citizens, ..." (emphasis added). As the appellant pointed out, the ministerial policy sets out the considerations which are to be taken into account on both sides of the balance. To this extent, it would be wrong to treat the policy as itself favouring one side of the balance. But it is clear from the way that the Tribunal then went about its task that it did not do so. The passage relied upon by the appellant was probably intended as a shorthand statement to the effect that the Tribunal is to have regard to the factors in the policy which would favour deportation. Whether or not this was so, it is clear that the literal error expressed in this passage did not in any way affect the Tribunal's reasoning process during the course of its decision.
57 There is very little to support the appellant's contention that the Tribunal conducted its process as an appeal from the delegate's decision rather than as a de novo review on the merits. In support of this ground, the appellant relies upon two passages in the Tribunal's reasons. The first occurred when the Tribunal said: "What then are the factors which support upholding the Delegate's decision to deport the applicant" (emphasis in original). After discussing these factors, the Tribunal said: "I shall now look at the factors which would support setting the deportation order aside".
58 According to the appellant, these passages indicate that the Tribunal was considering the factors for and against the delegate's decision rather than embarking on a process of de novo merits review. However it is perfectly clear both from the transcript of the proceedings before the Tribunal and from the reasons for its decision that the Tribunal embarked upon precisely the process which is envisaged by the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), namely a process of independent merits review. At no stage did it seek to analyse the correctness or otherwise of the delegate's decision, either during the course of the hearing or in its reasons for decision. The Tribunal received a great deal of evidence, including evidence not available to the delegate, and made its decision on the basis of that evidence. The presiding member was a Deputy President with a great deal of experience in the area. It is unthinkable that he would have been misconceived as to the object or process of merits review. In my view there is no substance in this ground of appeal.
Did the Tribunal fail to take into account relevant considerations?
59 The first matter raised under this ground is that the Tribunal failed to consider whether the appellant would make a positive contribution to the Australian community. The Tribunal's supposed failure to consider the appellant's contribution as a separate balancing factor was also raised by the fourth particular under this ground. The two issues are virtually identical and will be discussed together.
60 The Tribunal in its reasons for decision first discussed considerations which would favour the making of a deportation order. It then turned to those which might favour the appellant. After discussing his family background, the Tribunal made the following observations:
"It may be said in the applicant's favour that he has spent just on half of his life in this country, and hence he should be our responsibility rather than that of his country of citizenship. Alas, that is not the law, but it does indicate his contribution to this country is minimal, Dang having spent a large part of his adult life to date in prison.Whilst in prison his conduct can hardly be described as exemplary. However, given the `culture' of prison life and the Vietnamese inmates who rule it over their compatriots, I make no adverse findings on that aspect. Currently, Dang is employed and I am satisfied that he has made every effort to find - and hold down - gainful employment. At one stage, he claimed that he could not call his employer as a character witness, asserting that he would lose his job the next day, albeit later in the evidence, it was said the employer was aware of his criminal past."
61 The appellant urges that it was insufficient for the Tribunal to make a "passing reference" to the appellant's employment. This was relevant to the contribution he might be expected to make to the Australian community and should have been discussed in that context. On the other hand, Mr Beech-Jones, who appeared for the respondent on the appeal, pointed out that the appellant had been in employment for only a few weeks at the time of the Tribunal's hearing. This was hardly a weighty matter in his favour, but in any event it was clearly taken into account by the Tribunal.
62 It is true that the Tribunal did not in terms relate the appellant's employment history to the question of his potential contribution to the Australian community. But it cannot be said that the Tribunal failed to take into account the appellant's contribution to the Australian community. In the preceding passage the Tribunal had referred to the appellant's contribution thus far as "minimal". It then went on to refer, in favourable terms, to his recent employment history. A failure specifically to treat this history as indicating a possible future contribution to the community (if there was such a failure) could not in these circumstances amount to an appellable error.
63 The second "relevant" consideration which the Tribunal is said to have failed to take into account is the fact that the appellant was a minor when he first came to Australia. It was suggested that paragraph 20 of the Ministerial Policy identifies this as a matter which must be considered.
64 This matter was raised by the Tribunal in the following passage:
"It may be said in the applicant's favour that he has spent just on half of his life in this country, and hence he should be our responsibility rather than that of his country of citizenship. Alas, that is not the law, but it does indicate his contribution to this country is minimal, Dang having spent a large part of his adult life to date in prison."
65 According to the appellant, the fact that he arrived in this country as a minor was a consideration which required separate assessment. The passage quoted above did not directly advert to this issue, thus giving rise to appellable error.
66 In my opinion this ground of appeal must fail. The Tribunal adverted to this issue in the passage quoted above. The language used ("he should be our responsibility rather than that of his country of citizenship") mirrors language which was used in early cases relating to the position of potential deportees who had arrived in Australia as children (Re Gogebakan v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544). The references to "just on half of his life in the country" and "a large part of his adult life to date in prison" show that the Tribunal was alert to the significant fact that the appellant was a minor during most of the time between his arrival here and his imprisonment.
67 Moreover, this was not a case of a person arriving in this country at a tender age and later, having been corrupted in Australia during his formative years, committing serious offences. This is the "sensitive issue" referred to in paragraph 20 of the ministerial policy, as is apparent from an examination of earlier cases which dealt with this issue. See Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 145. See also Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088; (1998) 86 FCR 483. The appellant arrived in Australia in December 1984 when he was nearly 16 years old. It was 2 years later, in December 1986, that he sustained his first criminal conviction. A further conviction followed in 1987, and the deportable offences were committed in December 1988.
This being so, it cannot be said that there is any "sensitive issue" arising from the age of the appellant when he arrived in Australia.
68 The third "relevant" consideration which the Tribunal is said to have failed to take into account is that the appellant was not warned, prior to committing the deportable offence, that he may be liable for deportation if he committed a serious offence. This ground was not raised before the primary judge. The appellant's submission under this head is in the following terms:
"Paragraph 19 of the policy indicates that serious weight should be given to a warning when notwithstanding that warning the person commits a further deportable offence. The appellant submits that implicit in this is the fact that the absence of such a warning is also a factor which the AAT must take into account."
69 In my opinion this submission is misconceived. Warnings about deportation are not, and could not practicably be, delivered at large to non-citizens who have not yet committed deportable offences. The essence of warnings is they are addressed to persons who have already rendered themselves liable to deportation by committing deportable offences. This is clear from the terms of the policy itself. It refers to persons who have previously been warned about the liability for deportation and who, notwithstanding that warning, commit a further deportable offence. By necessity this policy can have no application to persons, such as the appellant, who have committed only one deportable offence or series of offences before the making of a deportation order.
Did the Tribunal take into account irrelevant considerations?
70 This ground of appeal was not raised before the primary judge. The respondent consented to its being raised for the first time before us. It relies upon the proposition that the Tribunal took into account the following irrelevant considerations:
(a) that the appellant was a participant in the crime of "home invasion", and
(b) that immigrants from the appellant's ethnic background do not "grow out of" their criminal instincts with advancing years.
71 The Tribunal, on a number of occasions, described the offence committed by the appellant as one of "home invasion". The appellant submits that this overstated the nature of the offence which the appellant had committed, which was robbery in company. Thus, the appellant urges the Tribunal went beyond considering what is referred to in paragraph 19 of the Ministerial Policy as being "the nature of the offence".
72 It is undoubtedly the fact that the phrase "home invasion" is not used in the formal criminal calendar. But it is so much a part of common usage as to have found its way into the Macquarie Dictionary, 3rd ed at p 1023. It is also an apt description of the offence in which the appellant participated in December 1988. This offence was, as the Tribunal described it, "a horrendous crime". It must have had a profound effect on the six innocent victims. The lengthy term of imprisonment imposed upon the appellant is an indication of the seriousness of this offence. Moreover it did in truth involve the invasion of the home of the Trinh family. In my view there is no substance in this complaint.
73 The second matter raised under this head arose from a comment made by the Tribunal when discussing the evidence of the psychologist, Ms Robilliard, to the effect that anti-social behaviour is known to abate with increasing age. The Tribunal, having quoted Ms Robilliard's opinion that the appellant's history "is not an atypical history of a young Vietnamese male who arrives at the age this boy did" made the following observation:
"That may be so, but it does little to reassure me that immigrants from that background `grow out of' the criminal instinct with advancing years".
74 The appellant submits that the Tribunal in this regard was focussing upon irrelevant matters as to which there was no evidence.
75 The real sting in this comment, which is raised in a later ground of appeal, is that it might be taken as categorising Vietnamese immigrants as having criminal instincts which they fail to "grow out of". But it is perfectly clear from the balance of the Tribunal's discussion that it was not basing any part of its conclusion as to the possibility of the appellant reoffending, upon stereotypical assumptions relating to his background. To the contrary, the Tribunal based its findings upon the appellant's individual attitudes and actions.
76 In my view nothing of substance has been raised under this ground of appeal.
Was the Tribunal's decision so unreasonable that no reasonable Tribunal could have reached it?
77 The matters raised before us under this head appear to be different from those which were raised before the primary judge. In the amended notice of appeal to this court, the appellant relies on the following matters under this head:
(a) the Tribunal substituted its own opinion for that of the expert psychologist on matters within the expertise of the psychologist and upon which there was no other available expert evidence, and
(b) the Tribunal discredited the evidence of the appellant's parole officer on the basis of non-existent facts or of a distorted view of the parole officer's evidence.
78 The appellant's complaint as to the Tribunal's treatment of Ms Robilliard's evidence as contained in Mr Godwin's written submissions is somewhat different from that which was pressed at the hearing. The written submission under this head was in the following form:
"The opinion of Anna Robilliard was that the appellant would now be very sensitive to his father's opinions and wishes (AB452). Based upon this assessment Anna Robilliard gave evidence at AB361 that:`I don't think his father is being unrealistically enthusiastic about a thorough-going and permanent transformation.'
There was no other psychologist who offered a different opinion. The extent to which the appellant would be sensitive to his father's opinions and wishes was just as much within the area of the psychologists expertise as was the affect of Pierre Fuduche's presence to the well being of Ms Longhurst in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. The AAT at AB472 makes it clear that it does not accept the psychologist's opinion because it was based upon the father's assessment of the appellant's change in attitude. However, the extent to which the father had an influence over the son was the very fact upon which the psychologist was expressing her professional opinion. In rejecting this opinion without any contradicting expert evidence was so unreasonable that it meant that the decision of the AAT was affected by an error of law."
79 At the hearing Mr Godwin referred to Ms Robilliard's evidence that the appellant's prognosis in terms of re-offending was "far more positive than negative". Given that the Tribunal's purpose in seeking this type of evidence was to obtain an opinion from someone with scientific training, he submitted that the treatment the Tribunal gave to Ms Robilliard's evidence was so unreasonable that no reasonable Tribunal could have reached the same conclusion.
80 Mr Beech-Jones raised as a preliminary issue whether findings of fact, as opposed as exercises of discretion, can be impugned on the ground of Wednesbury unreasonableness. He referred to the following passage in the judgment of Gleeson and McHugh JJ in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 162 ALR 577 at 587, para 40:
"The essence of the suggested illogicality or unreasonableness in the Tribunal's decision, as observed by Hill J, and accepted by Davies and Burchett JJ, although strongly contested by Whitlam J, is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible. It was considered by Hill J that the Ttribunal failed to give sufficient weight to certain information before it, especially information from EHRC, and attached unwarranted importance to the absence of any independent record of the alleged occurrences. Whitlam J was of the view that the reasoning displayed no error. Even if it did, however, there is a serious question whether the suggested error is of the kind to which the Wednesbury privilege is directed. We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Ttribunal's decision, even on Hill J's view of it , as an abuse of power. Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as `illogical' or `unreasonable', or even `so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence."
81 Hayne J made the following comment at 613-614, paragraph 159:
"I agree that the application under s75(v) of the Constitution should be dismissed, again with costs. I prefer to express no view on whether what is called the Wednesbury unreasonableness ground is a ground of granting any of the remedies referred to in s75(v) or on what is properly encompassed by that ground. I therefore express no view on whether it is a ground that concerns, or concerns only, the exercise of discretion rather than the finding of facts. The questions debated in the course of argument about what was said by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd need not be answered in this case. Even if Wednesbury unreasonableness is given as wide a reach as the applicant contended, and even if it is a ground that is open to an applicant for relief under s75(v), the reasons given by Gleeson CJ and McHugh J show that the decision of the Refugee Review Tribunal was a decision that was open to it. The applicant did not show that the decision wasso unreasonable that no reasonable Tribunal, acting within jurisdiction and according to law, could have reached the conclusion that this Tribunal did."(footnotes omitted)
82 It is unnecessary to resolve this issue here. For in my view the Tribunal's findings in relation to the evidence of the psychologist and the parole officer could not possibly be categorised as so unreasonable that no reasonable Tribunal could have reached them.
83 Mr Godwin described Ms Robilliard and the parole officer as "experts who have the scientific training that the Tribunal didn't have". If he was seeking to suggest that the fields in which they gave their evidence involved matters of such expertise that the Tribunal was obliged, in the absence of contrary evidence, to accept their views, I cannot accept this proposition. Psychological evidence can be of great assistance to courts and tribunals when assessing matters such as potential recidivism or the extent of an offender's remorse. But these are patently not areas of exclusive scientific expertise. Courts and tribunals are in the daily business of making their own assessments on these matters.
84 In any event, even in matters of pure scientific expertise, an expert's opinion is only as good as the facts upon which it is based. The real problem in this case was that the Tribunal disagreed with many of the factual assumptions underlying the opinions of both the psychologist and the parol officer. The Tribunal was perfectly entitled take this view, and having done so, it rendered nugatory many of these witnesses' opinions as to the appellant's background and his likely prognosis.
85 Dealing first with the psychologist's evidence. The Tribunal discussed Ms Robilliard's report and evidence at some length. She had diagnosed the appellant as suffering from post-traumatic stress disorder arising from the shooting incidents in 1987. However the Tribunal was unconvinced as to the factual assumptions on which she had based this assessment. In particular the Tribunal did not accept that the shootings were accidental as described by the appellant. This led the Tribunal to discount many of Ms Robilliard's opinions. In the circumstances it was entirely justified in adopting this approach.
86 Similar comments can be made in relation to the Tribunal's treatment of the evidence of the parole officer, Mr Dinh. The appellant's major complaint in this regard was that the Tribunal described Mr Dinh's report and evidence as "somewhat qualified". The appellant pointed out that the parole report itself was not qualified, nor were the opinions expressed in it subsequently qualified in oral evidence. In support of this ground Mr Godwin took us to a number of passages in the transcript in which Mr Dinh maintained his favourable view as to the appellant's future prospects, in the face of strong cross-examination by the respondent's representative.
87 It is clear from a reading of the Tribunal's decision that the Tribunal's comment that Mr Dinh's report and evidence was "somewhat qualified" related to the factual basis upon which Mr Dinh's views were based, rather than upon any qualification expressed by Mr Dinh himself. There were a number of significant respects in which accounts given by the appellant to Mr Dinh were inconsistent with the evidence the appellant had given to the Tribunal. This led the Tribunal to conclude that the appellant had lied on a number of occasions. Hence much of Mr Dinh's evidence turned out to be adverse to the appellant, not because of Mr Dinh's expressed opinions, but because of the inconsistencies it revealed in his evidence. In these circumstances, the Tribunal was perfectly entitled to conclude that Mr Dinh's report and evidence were "qualified". They may not have been qualified by Mr Dinh himself, but they were certainly qualified by the Tribunal's legitimate inability to accept the factual assumptions upon which they were based.
Did the Tribunal breach the rules of natural justice?
88 The sixth ground of appeal relied upon by the appellant is that the Tribunal erred in law by breaching the rules of natural justice. Under this ground the appellant relied on two matters, neither of which was raised before the primary judge. The first ground was that the Tribunal failed to give either the psychologist or the appellant the opportunity to be heard in response to its (the Tribunal's) assertion that the applicant had "put one over" the psychologist. The appellant's written submissions in support of this ground were as follows:
"A matter critical to the AAT's conclusion was its assessment that the appellant had succeeded in `putting one over' the psychologist. This assessment was never put directly to the psychologist or to the appellant. In respect of the appellant this is not surprising given that he gave his evidence prior to the request being made to obtain evidence from the psychologist.At AB404 the psychologist was asked by counsel for the respondent `To what extent did you try to ascertain whether there was deception in Mr Dang's responses?'. The psychologist replied `it is structured into the test' and a long explanation then follows. Apart from this there is no indication from the AAT that it proposed to discount the psychologists evidence on the basis that the applicant had `put one over' her.
The appellant submits that the finding by the AAT that he had "put one over" the psychologist was a matter which necessarily had an adverse effect upon his and which he therefore should have been put on notice of in order that he could take any steps he thought appropriate to meet the assertion (Meadows v MIMA [1998] FCA 1706)."
89 The Tribunal, as already observed, discussed Ms Robilliard's report and evidence in considerable detail in its decision. It disputed the factual assumptions upon which her opinions were based and made the following comment: "Put crudely I am satisfied that Dang succeeded in `putting one over' Ms Robilliard, who clearly felt sorry for the father and was prepared to give Dang the benefit of every doubt". It is this finding which, the appellant submits, should have been communicated to the appellant's representative during the course of the Tribunal hearing so that steps could be taken to address it. In support of this submission Mr Godwin relied on Marelic v Comcare (1993) 121 ALR 114 and Meadows v Minister for Immigration and Multicultural Affairs (1999) 54 ALD 654. It is unnecessary in my view to discuss these cases here. Both involved situations where adverse findings were made that a party had fabricated material evidence before the Tribunal, without that matter having been put to the party during cross-examination. The situation here was quite different, as Mr Godwin concedes, for Ms Robilliard's report had not yet been procured nor her evidence anticipated, when the appellant was cross-examined before the Tribunal.
90 Mr Godwin was asked how the Tribunal should have dealt with this matter, given the sequence of events. He said that after the psychologist's evidence had been given, the Tribunal should have alerted the appellant's representative to its opinion that the psychologist had been misled, so that the appellant could return to the witness box and respond to this suggestion.
91 The conduct of proceedings before the Tribunal is governed by s 33 of the AAT Act. Essentially, the procedure is within the Tribunal's discretion. It is not bound by the rules of evidence, and may inform itself on any matter in such manner it thinks appropriate. It is of course bound by the rules of procedural fairness.
92 There is no suggestion in my view that any rules of procedural fairness or natural justice were breached in this case. As Mr Beech-Jones pointed out, the appellant was cross-examined at length before the Tribunal in a manner which clearly indicated that the respondent did not accept his version of events leading up to and including the offences of December 1988. As to Ms Robilliard, her qualifications and expertise were in no way questioned by the Tribunal. Issue was taken as to the factual assumptions on which her opinions were based. However given the course of the appellant's previous cross-examination, it would have been perfectly evident to the appellant and his representatives that Ms Robilliard's conclusions were likely to be challenged on this basis.
93 In my view, there is no substance in the appellant's complaint under this particular.
94 The second matter raised by the appellant under the sixth ground of appeal is that some of the Tribunal's comments during its decision created an apprehension that the Tribunal was biased. In support of this submission the appellant sought to rely upon certain comments made by the primary judge which were critical of the language used by the Tribunal in its decision. The relevant passages from his Honour's judgment are as follows:
"A court must accord some real latitude to a decision maker concerning the way their reasons for decision are expressed. However that does not provide a licence for a decision maker to use extravagant, offensive or unnecessarily colourful language. In the present case some of the language used by the Tribunal might be characterized in this way and may well have been seen by the applicant and his family as coloured. The decision of the Tribunal plainly had profound implications for the applicant and his family. Indeed the Tribunal acknowledged as much. The preparedness of an unsuccessful applicant and others with an interest in the application to accept the correctness of a decision may well be diminished by the use of inappropriate language. In the present case the Tribunal spoke of `gangsters' and `mobsters' though, it must be acknowledged, it accepted that the term `gangster' might not be an apt description of the applicant. Nonetheless those terms were used in the context of the Tribunal describing the crime of `home invasion' as `an introduced crime'. On one view of this expression, the Tribunal was implying that it is a crime resulting directly from the recent immigration of peoples of different ethnic or cultural backgrounds and probably from Asia. Indeed the Tribunal spoke of the applicant having access to information relating to this local `Vietnamese Mafia' which apparently was a term not used by any witness or advocate in the proceedings. Later, in the context of discussing Ms Robilliard's evidence that the applicant does not have an atypical history for a young immigrant Vietnamese male, the Tribunal said:
It [the evidence of the psychologist] does little to reassure me that immigrants from that background `grow out of' their criminal instincts with advancing years.
Again this passage, on one view, may be thought to imply that Vietnamese males have some inherent predisposition to commit crime.
I accept as entirely reasonable the view the Tribunal took of the abhorrent nature of the crime in which the applicant participated on 20 December 1988. However the language to which I have just referred has the tendency to create the impression that the Tribunal's decision was coloured by a view about Vietnamese or at least young Vietnamese males. If it has created that impression in the eyes of the applicant or his family, it is unfortunate that the Tribunal deployed the language it did."
95 The appellant submits that the language used by the Tribunal as summarised in the above passage would create an apprehension of bias in the fairminded observer.
96 The type of bias alleged here is bias through preconceptions existing independently of the case, as revealed by the Tribunal's conduct during the course of the proceedings or, as relevant here, in its reasons for decision. In order to establish such bias, it must be shown that the Tribunal member held preconceptions on matters relevant to the proceedings so that a fair minded observer would apprehend that he would be unable to afford the appellant a fair hearing.
97 In my opinion the Tribunal's comments, as described as his Honour, are quite inadequate to create in the fair minded observer any apprehension that the Tribunal had such a biased attitude towards Vietnamese youth and their criminality that it was unable to afford the appellant a fair hearing. If the Tribunal's comments had genuinely given rise to such a concern on the part of the appellants, one would expect it to have been raised in the original notice of appeal. Certainly the Tribunal's decision was couched in strong and colourful language. The Tribunal clearly took a very dim view of the appellant and his criminal associates. But the circumstances of the deportable offence, in particular, justified the taking of this view. In my view there is no substance in this ground of appeal.
98 No appellable error having been shown I would dismiss the appeal and order the appellant to pay the respondent's costs.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews. |
Associate:
Dated: 15 February 2000
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
N 157 OF 1999 |
BETWEEN: |
CONG TAM DANG APPELLANT |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT |
JUDGES: |
DRUMMOND, MATHEWS AND MANSFIELD JJ |
DATE: |
15 FEBRUARY 2000 |
PLACE: |
SYDNEY |
MANSFIELD J:
99 I too agree with the reasons for decision of Mathews J and that this appeal should be dismissed with costs.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
Dated: 15 February 2000
Counsel for the Appellant: |
D Godwin |
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Solicitor for the Appellant: |
J Rigg |
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Counsel for the Respondent: |
R Beech-Jones |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
23 November 1999 |
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Date of Judgment: |
15 February 2000 |
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