Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 (20 September 2004)

Last Updated: 20 September 2004

FEDERAL COURT OF AUSTRALIA

Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259

MIGRATION – appeal from orders made by the primary judge under s 44 of the Administrative Appeals Act 1975 (Cth) deportation under s 200 of the Migration Act 1958 (Cth) – whether failure to make material findings of fact as to risk of recidivism and hardship to appellant if deported – balancing protection of Australian community from repetition of offences against hardship likely to flow to appellant and the appellant’s family if the appellant were returned to China.


Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 applied
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 followed
Plaintiff S 157/2002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24 followed























APPELLANT V324 of 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 324 OF 2004

HILL, STONE & ALLSOP JJ
20 SEPTEMBER 2004
SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V324 of 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT V324 OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HILL, STONE & ALLSOP JJ
DATE OF ORDER:	20 SEPTEMBER 2004
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.














Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V324 of 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT V324 OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HILL, STONE & ALLSOP JJ
DATE OF ORDER:	20 SEPTEMBER 2004
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

HILL & ALLSOP JJ

1 This matter commenced as an appeal from the orders of a Judge of this Court dismissing an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of the delegate of the respondent to deport the appellant. During the hearing, discussion took place as to the effect of ss 474 and 483 of the Migration Act 1958 (Cth). In the light of that discussion leave was granted to treat the application before the Court as made under s 39B of the Judiciary Act 1903 (Cth). The amended notice of appeal under the AAT Act was and is to be taken as containing the grounds on which it is asserted that the Tribunal committed jurisdictional error.

2 Prima facie, the decision of the Tribunal to deport a person will be a privative clause decision, unless relevant jurisdictional error is revealed: Plaintiff S 157/2002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24. Thus, the decision of the Tribunal can only be the subject of challenge by an application asserting jurisdictional error. Section 483 of the Migration Act, on its face, excludes an appeal under s 44 of the AAT Act. However, if there is jurisdictional error, the Tribunal’s decision will not be a privative clause decision, with the consequence that an appeal under s 44 of the AAT Act is in fact available, notwithstanding the terms of s 483. If jurisdictional error is to be asserted, usually s 39B of the Judiciary Act will be invoked; though it would be permissible to employ the procedure of an appeal under s 44 of the AAT Act as long as it asserted a question of law which amounted to a jurisdictional error. For the purposes of future procedure, if an applicant seeks to challenge a decision of the Tribunal to deport a person, that challenge should be made under s 39B of the Judiciary Act, or under s 44 of the AAT Act as long as a jurisdictional error is asserted as the question of law, or, conceivably, under both provisions.

3 The grounds of the appeal are set out in the notice of appeal from the primary judge as follows:

3. The learned judge was wrong in law in not finding that the Administrative Appeals Tribunal ("The Tribunal") in its decision on 13 June 2003 affirming the decision to deport the appellant had erred in law by failing:

a.	to consider; and
b.	to make findings about;

the case put by the appellant as required by the Administrative Appeals Tribunal Act 1975 (Cth) and thereby failed to exercise its jurisdiction.


4. The learned trial judge was wrong in law in not holding that the Tribunal had erred in law by failing to make findings:

a.	about the risks of hardships, including the risks of execution, that the appellant would or would likely suffer if he was deported to China;
b.	about the risk of the appellant re-offending.

4 The amended notice of appeal under s 44 of the AAT Act from the decision of the Tribunal in the paragraphs setting out the questions of law and the grounds of appeal raised numerous matters not argued on appeal. Importantly, also, those grounds do not precisely reflect the issues argued on the appeal in this Court. The questions of law raised in the amended notice of appeal under s 44 were in the following terms.

a.	Did the Tribunal err in law by exercising discretionary power in accordance with a rule of policy without regard to the merits of the case?

b.	Did the Tribunal err in law by taking irrelevant considerations into account in the exercise of the power under s 200 of the Act?

c.	Did the Tribunal err in law by failing to take relevant considerations into account in the exercise of power under s 200 of the Act?

d.	Did the Tribunal err in law by an exercise of power that was so unreasonable that no reasonable person could have exercised the power?

e.	Did the Tribunal err in law by reaching a decision based on the existence of a fact and that fact did not exist?

f.	Did the Tribunal err in law by reaching a decision that there was no evidence or other material to support?

g.	Did the Tribunal err in law by reaching a decision that was irrational or illogical?

h.	Did the Tribunal err in law by failing to consider the case put by the Applicant and thereby fail to exercise jurisdiction?

5 The grounds of appeal as set out in the amended notice of appeal under s 44 of the AAT Act were in the following terms.

4.

GROUNDS

a.	The Tribunal erred in law by reaching a decision by the application of the General Direction - Criminal Deportation – No. 9 Policy ("the General Direction") without regard to the material of the Applicant’s case and its unique features;

b.	The Tribunal erred by taking into account irrelevant considerations, namely that the Applicant had not completed the CORE Sex Offender Program Management and Intervention Program;

c.	the Tribunal erred in law by failing to consider relevant considerations namely:

i. that the Applicant had spent a large part of his youth and all his adult life in Australia;
ii. that as the Applicant had been present in Australia for a long time and had served lengthy periods of imprisonment, Australia owed an obligation to the Applicant to allow him to attempt to reintegrate into the Australian community;
iii. the concept of recidivism required to be considered under the General Direction, including the relevance of the time that had elapsed since the Applicant’s last criminal conviction;
iv. that the risk of the Applicant’s recidivism had declined to a low point;
v. that the Applicant had been unable, by circumstances beyond his control, to complete the CORE Sex Offender management and intervention program; and
vi. the totality of the effect of the Applicant’s deportation on his family.

d.	the Tribunal erred in law by basing its decision on the existence of a fact that did not exist, namely that there was evidence that the Applicant was at risk to the Australia community requiring his deportation;

e.	the Tribunal erred in law by an exercise of power that was so unreasonable that no reasonable person could have so exercised the power;

f.	the Tribunal erred in law by failing to consider the case by the Applicant and thereby failed to exercise its jurisdiction;

g.	the Tribunal erred by reaching a decision that was irrational or illogical; and

h.	the Tribunal erred in law by failing to consider the case put by the Applicant and thereby failed to exercise its jurisdiction.

6 It can be seen from a perusal of these paragraphs that the issue concerning likely hardship on return to China and the risk of the appellant re-offending, being the issues referred to in [4 (a) and (b)] of the notice of appeal, being the issues to which the arguments on appeal were primarily directed, were dealt with in the context of the grounds dealing with a failure to take into account relevant considerations. (See especially ground 4(c) in [4] above.)

7 Central to the argument of the appellant before this Court was s 43(2B) of the AAT Act, which is in the following terms:

Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

8 The terms of the provision are clear. It is necessary for the Tribunal to record its findings of the facts that it considers to be material. That proposition was also made plain by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 in considering the similarly worded s 430 of the Migration Act. There are differences between s 430 and s 43(2B), but these differences only reinforce the proposition that s 43(2B) only requires that it is the findings of fact which, in the opinion of the Tribunal, are material that need to be set out in the reasons. Merely because the Court is of the view that the matter should have been approached in a different way or that important factual questions have not been addressed does not lead to the conclusion that there has been a failure to comply with s 43(2B). Nevertheless, as was pointed out in Yusuf at [31], [74], [75] and [82], the absence of findings by the Tribunal on certain matters or the nature of the findings actually made may disclose that the Tribunal has failed to attend to the task given to it by the statute. The findings, including the absence of findings, may, in that way, disclose jurisdictional error.

9 With these preliminary remarks, it is necessary to turn to the appellant’s circumstances insofar as they are relevant to his appeal. The appellant is 36 years old. He was born in the People’s Republic of China. He is of mixed Russian and Chinese ethnicity. He migrated with his family to Australia on 17 December 1985 when he was 17. Within a short period of arriving in Australia, he undertook, in three States, a course of criminal conduct of a very serious nature. From March 1986 to October 1986, he committed twelve offences, three of which were indecent assault, rape and sexual assault being sexual intercourse without consent. The remaining offences were of a lesser gravity, but also very serious. The first two sexual assaults were perpetrated during the commission of breaking, entering and stealing from the residences of his victims. The third involved the sexual assault of a young girl at knifepoint in a public park while she was assisting her father in the conduct an early morning milk run.

10 The appellant was charged with, and convicted of, these offences, and incarcerated. He served his term of imprisonment. He remains in prison pending deportation. The appellant has, in his near 20 years in Australia, spent only 11 months at liberty in the Australian community. His mother, father and two sisters reside in Australia. They are apparently now Australian citizens. The appellant’s intelligence has been classified at 70, which places him at the second percentile, that is to say that 98% of the Australian population has a higher measured intelligence. He has poor language skills; he is neither proficient in English, nor in Mandarin. Having only attained three years’ formal education in China, between the ages of 8 and 11 years, his facility in Mandarin has diminished by reason of non-use in prison. The appellant has undertaken a number of courses in prison, including an English course and small business course; he has gained substantial experience in production line work and is not without references.

11 An issue of factual importance in the consideration of his position by the Tribunal was the power invested in the Chinese authorities pursuant to the criminal law of the People’s Republic of China to retry and convict the appellant for the crimes that he committed in Australia and for which he has been punished in Australia. Crimes such as those committed by the appellant could attract anywhere between 10 years’ to life imprisonment, and possibly the death penalty. In an affidavit read before the Tribunal, the relevant provisions of Chinese law were outlined. The relevant provisions, being Articles 10 and 236, provide as follows:

Article 10. Any person who commits a crime outside PRC territory and according to this law bear criminal responsibility may still be dealt with according to this law even if he has been tried in a foreign country; however, a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment.

Article 236. Whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than three years and not more than 10 years of fixed-term imprisonment.

Whoever has sexual relations with a girl under the age of 14 is to be deemed to have committed rape and is to be given a heavier punishment.

Whoever rapes a woman or has sexual relations with a girl involving one of the following circumstances is to be sentenced to not less than 10 years of fixed-term imprisonment, life imprisonment, or death:

(1) rape a woman or have sexual relations with a girl and when the circumstances are odious;
(2) rape several women or have sexual relations with several girls;
(3) rape a woman in a public place and in the public;
(4) rape a woman in turn with another or more persons;
(5) cause the victim serious injury, death, or other serious consequences.

12 There was no dispute about the fact that the appellant’s circumstances make him liable to deportation. Section 200 of the Migration Act provides:

The Minister may order the deportation of a non-citizen to whom this Division applies.

13 Section 201 relevantly provides:

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

...

(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.

14 The delegate of the Minister made an order on 16 September 1997, requiring the appellant’s removal from Australia after the completion of his custodial sentences. In his assessment of whether the appellant should be deported, the Minister’s delegate found that the very serious nature of the sexual offences, the appellant’s negligible contribution to the community and the moderate to high risk of recidivism were all factors in favour of the appellant’s deportation. The factors against his deportation were said to be the strong family ties he had in Australia and the hardship the appellant alleged that he would endure upon his return to China. The Minister’s delegate was not persuaded by the latter of these two factors and considered that the factors in favour of the appellant’s deportation outweighed any hardship, emotional or otherwise, that may accrue to him or his family.

15 The delegate’s decision was appealed to the Tribunal, which, on 25 July 2001, affirmed the decision of the delegate. An application for judicial review of this decision was successful, and the matter was remitted to the Tribunal where on 13 June 2003, the Tribunal, differently constituted, affirmed the decision of the delegate for a second time. This latter decision was the subject of an application to the primary judge. The primary judge dismissed the application. The appellant now appeals from the orders of the primary judge.

16 It is appropriate first to examine the decision of the Tribunal.

17 In a carefully expressed decision, the Tribunal affirmed the delegate’s decision. The Tribunal recognised that by reason of s 499 of the Migration Act it was bound to take into account the relevant Ministerial Direction being "General Direction – Criminal Deportation – No 9" of 21 December 1998 ("the Direction"). The Tribunal outlined the primary considerations identified by the Minister in the Direction relevant to the matter before it. One such consideration was the expectation that the community will be protected and not put at risk. In an assessment of the level of risk to the community and the need for its protection, the Tribunal indicated that it was bound to consider the seriousness and nature of the crime. Among those crimes considered "serious" in the Direction were sexual assaults, whether or not accompanied by other violence, and especially multiple sexual offences. The Tribunal was also bound to consider the risk of recidivism and balance this with the expectation that non-citizens who commit or who are convicted of crimes that are abhorrent to the Australian community will be removed from Australia. A third consideration expressed in the Direction was the degree of hardship, which may reasonably be expected to be suffered by the potential deportee. Lastly, the Tribunal was bound to consider the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from the deportation of the appellant.

18 The Tribunal identified a number of issues relevant to these considerations. As to the seriousness of the crimes, the Tribunal at [29] reproduced the comments of the sentencing judges and the circumstances of the three convictions. In all instances the crimes were considered by those sentencing the appellant to be very serious. As to the appellant’s sense of remorse for his crimes the Tribunal noted the following at [30]:

In cross-examination, [the appellant] said that he knew that his conduct would have been against the law in China. Not only would his conduct have been against the law, it would have been an offence simply to talk about such a matter. His friends told him that if he broke the law while he was under the age of 18 years, he would not be punished under Australian law. His friends had all been in trouble with the law and he would not have been accepted by them had he not committed offences. He committed offences to impress his friends. At the time, he did not necessarily know that it was wrong because he was not intelligent, had just come to the country, did not speak English and did not know the law.

And then at [32]:

[The appellant] later said that he felt remorse about what he had done to others. He had done something horrible and it was the worst thing that a person could do to another. When he had been raped in prison, he felt very bad and he felt what his victims felt. He said that he committed the offences because he had not been very mature and was young. In addition, he had been easily influenced and not taken moral responsibility in society. He had been very naïve.

19 The Tribunal considered the conduct of the appellant in prison. The offences that the appellant committed in prison were summarised at [33] of its reasons; they were not serious. His ability to adapt to open institutions was considered. Although he was not considered a security risk it was found that he had problems adapting to the routine of an open institution.

20 As to the risk of recidivism, the appellant’s willingness to participate in rehabilitation programs was assessed. At [36] - [37] the Tribunal noted:

[The appellant] said in giving evidence that he received no counselling services at all while he was imprisoned in South Australia and saw only a gaol psychologist and a social worker before he was sentenced in New South Wales. Although he had been trying to get on a sex offenders course since 1998, he said, he had been unsuccessful in New South Wales as had been due to be transferred to face charges in Victoria. In cross-examination, [the appellant’s] attention was drawn to a note in a Case Review Form dated 18 August, 1997 in which [the appellant] is said to have stated that he had no interest in any education programmes when it was put to him about attending a SORT or GAIN course. [The appellant’s] behaviour was recorded as having improved slightly but that he was still not prepared to address his offending behaviour. (Exhibit 3, page 167) [The appellant] said that there was no sex offenders’ programme offered in Long Bay Gaol in 1997 and that it was first offered in 1998. He would only be offered a sex offenders’ course if he were within 12 months of his release.

A further Case Review Form dated 26 July, 1997 noted that [the appellant] had told an officer that he was not interested in enrolling in a SORT programme or in speaking to a counsellor about addressing his offending behaviour. The officer also said that [the appellant] could, at times, be non-compliant and that he could lose his temper with officers very easily. His conduct within the unit was only just acceptable. The case management supervisor’s review stated that [the appellant] should be encouraged to attend a GAIN programme if at all possible even if he did not attend any others. The GAIN programme it was said, would assist him in addressing his offence. (Exhibit 3, page 168) A later report dated 19 May, 1998 noted that [the appellant] had not utilized the "psyc services to address his offending behaviour" (Exhibit 3, page 110). In cross-examination, [the appellant] said that he had not been shown what had been written. He was not saying that the reports were not inaccurate. Reports were written each month and what he said was not recorded. The reports were only the opinions of the officers who wrote them.

21 One rehabilitation program, which was argued as being fundamental to understanding the appellant’s likely risk of recidivism, was the CORE sex offenders’ programme. The CORE programme is a management and intervention program that is usually offered to convicted sex offenders in the final twelve months prior to their release. It is a specifically designed intervention program that occurs three times a week for eighteen weeks. It uses up-to-date and well-recognised methods to address sexual offending. It offers practical ways of understanding offending; helping offenders admit more fully what they have done, helping them take responsibility for their offences and providing them with practical ways of dealing with these problems. The appellant’s treatment recommendations required that he completed the following modules: commencement module, offence process module/ cognitive distortions, victim empathy, social competency, and emotional regulation and relapse prevention. The appellant had completed only the social competency and emotional regulation modules at the time of the Tribunal hearing.

22 As to the CORE programme the Tribunal accepted the appellant’s evidence that he had started the programme at Ararat but that he was not able to begin it immediately upon his transfer to that prison due to an administrative problem. Consequently, he had missed the first module of the course but was continuing with later modules. The Tribunal observed the appellant’s undertaking with regard to completion of the course at liberty at [39]:

Should he be released from prison and permitted to remain in Australia, [the appellant] intended to complete as much as he could before his release on 28 May, 2003. He has given a written undertaking to complete each of the outstanding modules of the CORE Sex Offender Program Management and Intervention Program that he does not undertake or any modules accepted by CORE as equivalent modules as soon as they are made available to him on his release. He has undertaken to send the Minister a copy of any Completion Report issued by CORE or by Forensicare of Brunswick, Victoria. (Exhibit H).

23 The Tribunal considered the report and oral evidence of Dr Barry-Walsh a consultant psychiatrist who had extensive experience treating those who have committed sexual offences and who have a concurrent psychiatric condition. Summarising this evidence as it related to the likelihood of the appellant re-offending the Tribunal said the following at [78] – [79]:

In assessing the likelihood of re-offending, Dr Barry-Walsh said that several matters are relevant. The most important matter is that the person has started a sexual offenders’ course. It has been shown that the rate of re-offending is reduced if people have completed them. A difficulty in [the appellant’s] case is his lack of literacy and a further difficulty is his lack of adult experience in the outside world. If he completes the modules in the sex offenders’ course, his risk of re-offending is reduced. If he were not to complete the modules, the risk would be somewhat higher. If he is released without completing the programme, there is a question whether he will complete it. There is a need to have the out-patient sexual offenders’ programme in place before [the appellant’s] release.

Dr Barry-Walsh said that it is difficult to know the effect of the passing years. It is known that re-offending often occurs a number of years after the original offences were committed. He said that the expression or otherwise of remorse by offenders has no significance at all in assessing their risk of re-offending.

24 In addition, the Tribunal considered the evidence of Mr Ball who had prepared a psychological assessment and court report dated 19 June 2001 in relation to the appellant. This evidence was pertinent to the appellant’s failure to complete behavioural and cognitive treatment programs such as such as the adult sex offender treatment programme and relevant social skills programmes aimed at addressing his maladaptive behaviours. The Tribunal summarised in part, the evidence of Mr Ball at [81] of its reasons as follows:

...[the appellant] does satisfy the DSM-IV-TR diagnostic criteria for Relational Problems. He lacks appropriate courtship and interpersonal skills. Apart from raping his victims, Mr Ball wrote, [the appellant] has had no sexual contact or intimate social relationships with another person. Based on what [the appellant] had told him of his childhood experiences, Mr Ball considered that [the appellant] would have satisfied that current DSM-IV-TR diagnostic criteria for Conduct Disorder. His behaviour resulted in a clinically significant impairment to his academic, social and occupational functioning. In summary, Mr Ball referred to discriminatory treatment that [the appellant] and his family had received in China, his father’s being a very strict man who disapproved of drugs, lying and fighting and a man whose rules were too strict in [the appellant’s] view and sexual abuse by a relative in China. [The appellant] was in trouble at school and only attended from the ages of 8 to 11 because the other children would kick and punch him and he would end up in the teacher’s office. As a result, he was told to leave.

25 In relation to Mr Ball’s assessment of the likelihood of the appellant re-offending the Tribunal outlined the findings of Mr Ball as follows, at [83]:

Having regard to that literature and to his own clinical experience, Mr Ball had assessed that [the appellant] would be a low risk provided that he participated in treatment and supervision with the CORE sex offender programme. He based this on the following factors:

"A. [The appellant] committed his crimes at 17 years of age. At the time of his offences, [the appellant] claims he was not familiar with Australian law and was mislead [sic] by his peers. [The appellant] is not a well-educated or intelligent man and at the time he could not speak or read English.
B. [The appellant] experienced violence, alienation and discrimination whilst residing in China and had arrived in Australia with limited social skills.
C. [The appellant] has been imprisoned for 16 years and seems to have made a reasonable adaptation to prison life. He has a number of job qualification certificates and has improved his English and literacy to some degree whilst incarcerated.
D. [The appellant] expresses appropriate remorse towards his victims.
E. [The appellant] indicates a willingness to participate in a sexual offenders program." (Exhibit 3, page 88)

26 Based on Mr Ball’s evidence the Tribunal concluded at [86] – [88]:

[Mr Ball] also confirmed that those who have intellectual impairment, have a higher risk of recidivism than those who do not. His view that [the appellant’s] risk of recidivism is low is dependent upon his completing a sex offenders’ programme successfully. There are no guarantees. All that can be done is to provide them with the best possible treatment and lead them to a clear understanding of victim empathy so that they understand clearly what they are doing to their victim.

In the case of [the appellant], he has critically important modules of the CORE programme left to complete. Whether he will complete them as an outpatient is something that he can only take [the appellant’s] word on. If he were not to complete the modules, he would certainly be a higher risk of re-offending Mr Ball said. A written undertaking by [the appellant] that he would complete the course would indicate that he understood the situation.

Mr Ball said that his experience with the reintegration of prisoners into the community at the end of their sentences was more dated. It is never easy to reintegrate. There may or may not be difficulties in reintegrating into the family but it is naïve to expect that there will be none at all. [The appellant’s] lack of English is not so much a problem in his reintegration as his lack of education.

27 The Tribunal’s understanding that it was required to consider the expectation that non-citizens will be deported for crimes abhorrent to the Australian community derived from clause 15 of the Direction, which was included at [14] of its reasons. Clause 15 reads as follows:

It is the Government’s view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker’s understanding of the community’s attitude to the potential deportee’s offences. ...

28 The Tribunal examined what could be expected to be life in China for the appellant. The Tribunal considered and accepted evidence of the family’s experience in China. Due to their ethnic background, the family, when residing in China, were mistreated. It was submitted to the Tribunal that this would still be the case. His employment opportunities were poor. At [69] to [75] the Tribunal outlined the material gathered from the internet that the appellant had, by way of its counsel, put before it to evidence the possible consequences for the appellant were he to return to China. These included, in addition to those discussed at [11] of these reasons, a "strike hard" campaign against crime; the absence of fair trials; the high rate of executions especially amongst people of low educational and social standing; the general abuse of human rights including torture, arbitrary arrest and detention; the flaws of the criminal procedure laws; poor employment opportunities; expensive medical care; and the absence of social welfare in China.

29 As to the issue of hardship on the family should the appellant be deported the Tribunal outlined the following at [58] – [61]:

It is a very important part of Chinese tradition that the eldest son look after his parents. Therefore, her brother is expected to fulfil this duty. [The appellant’s sister] said that she and her sister would eventually marry outside the family. She is unable to care for her parents as she is supporting her two children as a single mother on a Parenting Payment. Her sister, [name withheld], works full time at Star Poultry and her earnings are used to pay the mortgage with which the family secured the loan it obtained to pay for her brother’s legal expenses. The family shares its expenses.

The family is not well off, [the appellant’s sister] said, and would not be able to afford to travel to China to visit [the appellant]. Her parents are not in good health and travel in China where health care is expensive is not sensible for them to undertake.

[The appellant] has no relatives living in China and has no contacts. There is no social welfare system and, with a criminal record, he would find it very difficult to find employment. It is likely that the family would have to support him from Australia were he to return. He would have difficulty with the language as his Mandarin is so poor.

[The appellant’s sister] said that the family would be devastated if [the appellant] were to be deported. Her parents would probably never see their son again. They would not have their son to care for them in their old age.

30 In consideration of these issues, in addition to numerous findings made throughout its reasons, the Tribunal relevantly made findings as to the two issues at the centre of the argument on appeal, being the likelihood of the appellant re-offending and the risks and hardship that the appellant would face on his return to China, in the following terms. With regard to the likelihood of the appellant re-offending the Tribunal member reasoned and relevantly found as follows, at [97] – [100]:

I find that [the appellant] is currently participating in the CORE programme. Many years have passed since he committed the offences of which he has been convicted. I accept [the appellant’s] evidence that he fell into bad company when he arrived in Australia. In addition, I am satisfied that he was isolated by his lack of English language and literacy skills. [The appellant] continues to be isolated to some extent by his lack of language and literacy skills. He has attended one course in English during his imprisonment and has improved his language skills through use. For all that, his English skills are still limited and [the appellant] himself describes them as approximately 30%. His limited literacy skills not only limit his ability to communicate but limit the assessment of him. Therefore, for example, some of the tests administered by Dr Barry-Walsh could not be interpreted for that reason. On the basis of the report of his progress in the MMIP, I find that some of his written work had been completed by other prisoners because of [the appellant’s] difficulties. As it was not his written work, it was difficult to assess whether that work represented [the appellant’s] understanding and insights into his behaviour or someone else’s views as to [the appellant’s] understanding or what it was thought his understanding should be.

I find that [the appellant] is unlikely to complete the CORE programme before he is released from prison. He has undertaken to complete it if he is released. I do not doubt that it is his intention to do so but it is hard to assess whether he will be able to do so. His difficulties with the English language have meant that he has relied on fellow inmates to assist him with written work. There must be a question whether or not he will receive such assistance and, if he does not, whether he will cope without it. For all that, I accept that [the appellant] intends to use his best endeavours to complete the CORE programme whether inside or outside prison.

If he completes that programme, I find on the basis of the evidence of Dr Barry-Walsh and Mr Ball, that [the appellant’s] risk of re-offending is reduced. Further refinement of that risk is difficult. Mr Ball referred to figures showing a recidivism rate of 8% after 12 months and 15% after five years. Persons with an intellectual impairment have a higher risk of recidivism than those who do not. [The appellant], I find on the basis of Mr Ball’s evidence, is in the Borderline Range or second percentile when measured against the Australian population.

By completion of the programme, I understand it to be successful completion. I accept his evidence that he felt that he had gained an insight into that when he himself was raped when in prison but I also find that his insight was yet to show itself in the CORE programme. In his report of 19 June, 2001, Mr Ball recorded [the appellant] as saying that he thought that he could get away with it and that had he been caught the first time, he would not have offended again as he knew right from wrong. [The appellant] told Mr Ball that he was a very different person but even by the time that the progress report on the MMIP module of the CORE programme was written on 27 March, 2003, it was reported that [the appellant] had demonstrated limited insight into victim empathy.

31 As to the risks and hardship that the appellant would face on his return to China the Tribunal member reasoned and relevantly found as follows, at [105] – [106]:

I also find that there is a risk that he would be charged again with the offences for which he has already been convicted and sentenced in Australia. I make that finding on the basis of Article 10 of the Criminal Law of the People’s Republic of China. Just how large that risk may be is a matter upon which I do not have the material to make a finding. The Article states that a person who has already been punished in a foreign country, as has [the appellant], may be exempted from punishment or given a mitigated sentence. If a sentence were imposed, I find on the basis of Article 236 of the Criminal Law of the People’s Republic of China that rape carries a sentence of not less than three years and no more than 10 years imprisonment. However, raping a woman in a public place or raping several women, as [the appellant] has, could lead to the imposition of a heavier sentence. One of the options would be the imposition of a death sentence. What the likelihood of that occurring is again a matter upon which I am not in a position to make a finding. In view of the reports of Amnesty International, I am satisfied that the rate of execution certainly appears to be extremely high in China. It appears to be imposed in a range of circumstances in which the death penalty is not imposed even in those countries where it is accepted as lawful. There must be some risk of [the appellant’s] facing such a sentence if he were to return to China but I am unable to quantify it.

If [the appellant] were to return to China, I find that he would be isolated, at least initially, by his lack of Mandarin. He does not have any family or family friends in China to whom he could turn for assistance. Whether his employment prospects would be limited is difficult to say. He has some qualifications and quite a deal of experience in production line work as well as good references. Whether they would have any standing in China it is not known. It is a fair thing to say that his life in China would be difficult at least initially even if he were not to face charges on his return.

32 Of importance to the Tribunal’s reasoning was the issue of Australian community attitudes to the nature of the crimes themselves. The Tribunal outlined its consideration on this issue as follows, at [102].

The next aspect to consider is the Australian community’s attitude to the nature of the crimes themselves. Rape is a crime that is unacceptable to the Australian community. The rape of four young women over such a relatively short period of time is extremely worrying and something that must be weighed in the balance. In some cases, such a series might be something that the Australian community would find so abhorrent as to justify a person’s being deported. In the context of this case, there is a background of the offences having been committed by a person with language, learning and cultural difficulties and it is not something on which I think it appropriate to make a positive finding in this case. Instead, it is more appropriate to take community attitudes into account as one of the factors but not as the sole determining factor of whether [the appellant] should be deported.

33 In conclusion, the final decision of the Tribunal was in the following terms, at [107] – [108]:

The situation that I must face in this case is that there are risks on both sides. On one side is the risk to the Australian community. That risk is relatively low if [the appellant] completes the CORE programme but it is a relatively low risk of the repetition of a very serious risk. It is apparent from the comments of the sentencing judges that at least one of the young women who were [the appellant’s] victims suffered very seriously over a prolonged period of time as a result of his having raped her. That was one of the young women in New South Wales. If [the appellant] does not complete the CORE programme, the risk is much greater and, on the basis of Mr Ball’s evidence, I find that it rises up to something in the order of 72%. There must be a risk, unquantifiable as it may be, that [the appellant] will not complete that course successfully.

On the other hand is the risk to [the appellant] should he return to China of losing his liberty and possibly his life. That is an unquantified risk but still a risk. In balancing those risks, I also have regard to the hardship to [the appellant] and his family should he be deported even if he is not charged again. It is with some anguish that I have reached the decision that I have. It seems to me that the nature of the offences of which [the appellant] has been convicted are so serious both in their nature and their repetition that the need of the Australian community to be protected from the risk of their repetition (even though that risk may ultimately prove to be small), outweighs the risk to the individual, [the appellant], and the hardship to him and his family.

34 Without any disrespect to Mr Ginnane SC, who, with Mr Heerey, appeared for the appellant, the argument of the appellant on appeal was less than clear. This was not due to any lack of skill on the part of counsel, but rather reflects the difficulty of counsel’s task. The essence of the appellant’s submissions was that the relevant considerations under the Direction, being the issue of hardship to the appellant and his family should he be removed to China and the risk of the appellant re-offending upon his release were inadequately dealt with by the Tribunal in its reasons, and this inadequacy on the part of the Tribunal reflected a failure to carry out the statutorily mandated task of review. Mr Ginnane SC eschewed, as he could not avoid doing, the proposition that the Court could identify what it viewed as material questions of fact. This was rejected in Yusuf and was inconsistent with s 43(2B) of the AAT Act.

35 The appellant’s submissions were founded on the assertion that Tribunal erred in law by failing to make relevant findings concerning the two material questions in the appellant’s case: the likelihood of his re-offending and the hardships he would face were he returned to China.

36 As to the first asserted topic of error, pointing to Articles 10 and 236 of the Criminal Law of the People’s Republic of China, counsel identified the risk of the appellant being charged again in China for offences for which he has already been convicted and served sentence for in Australia. It was submitted that the risk was increased due to the reported large numbers of extrajudicial killings in China and the high rate of executions generally, especially among ethnic minorities. It was submitted this risk was heightened by the nature of the appellant’s crimes and how they would or may be viewed in China. Counsel argued that the Tribunal’s finding that life in China would be difficult and that there was a risk, albeit unquantifiable, that the appellant would face a further retrial and conviction for his crimes, was not a sufficient body of factual findings on a material question of fact, and was so inadequate as to betray a failure to understand and fulfil the task of remaking the decision under the AAT Act.

37 With regard to the second asserted topic of error, that is, the likelihood that the appellant would re-offend, counsel for the appellant submitted that the Tribunal was obliged to make definitive findings of fact as to whether the appellant was likely to complete the programme upon his release in order to satisfy the requirement of a finding of a material fact. This was especially so in light of the evidence before the Tribunal of the appellant having completed three of the modules of the programme successfully, there being no evidence before the Tribunal to suggest that he would not observe his written undertaking to complete the course when released and the number of factors identified, including family and community support, persuasive of the appellant’s likely completion of the course at liberty.

38 Involved in the argument was the proposition that the Tribunal was bound to make individual findings of fact on all the major factual controversies between the parties. In particular, the appellant argued that it was incumbent upon the Tribunal to make positive findings of fact as to the percentage chance of the appellant re-offending and of the appellant suffering harm should he be required to return to China.

39 We reject these submissions.

40 From the structure of the Tribunal’s decision it can be seen that the Tribunal attended to, and made factual findings about, various important aspects of the evidence before it. It was for the Tribunal to identify such material as it found relevant and give it appropriate weight: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (per Deane J).

41 The Tribunal took the view that the attempt to predict with any specificity the risk of the appellant’s likely recidivism or the future actions of the Chinese authorities was not possible. The Tribunal’s approach in this regard was entirely rational. It is difficult to see how anyone could make any helpful findings as to the certainty or even probability of such future outcomes.

42 What the Tribunal can be seen to have done is to accept the best case for the appellant. That is, it accepted that the appellant would undertake the CORE rehabilitation program and therefore would be at a low risk of re-offending. The Tribunal also accepted that the chance of possible punishment in China as real and as being one that may amount to the death penalty. Notwithstanding these matters, however, the Tribunal (as it was called upon by the Direction to do) assessed these matters in the light of the gravity of the risk the appellant posed to the Australian community should he re-offend.

43 The Tribunal was of the view that both the expectations and protection of the Australian community were such that the risk of serious harm to the appellant upon his return to China was outweighed by these factors.

44 Simply put, even if the risk of the appellant re-offending were small, there remained a risk of extremely serious consequences to the Australian community. This risk was not one that the Tribunal saw as proper to take in light of the important obligation to safeguard the protection of the Australian community and to fulfil the expectations of the community. Another tribunal may have had other views. The Tribunal, however, weighed the competing considerations, approached the issues rationally and made findings of fact, which display a full understanding and execution of the statutory task before it.

45 The primary judge dealt with the argument of the Tribunal’s inadequacy of findings of material question of fact at issue as follows.

46 His Honour held that it was not necessary for the Tribunal to set out its reasoning on every matter raised in the proceedings, rather the obligation was to make findings and give reasons in respect of the substantial issues on which the case turned.

47 In respect of the submission that the Tribunal failed to make material findings about the degree of hardship that the appellant would suffer if returned to China, his Honour pointed to the Tribunal’s summation at [106] of its decision. His Honour noted that the Tribunal did not set out all the evidence concerning the hardship that the appellant would suffer as a result of being unemployed in China, but found that it was not required to do so; it was only required to make a finding about the issue, however briefly expressed, and consider what relevant harm may flow to the appellant were he deported to China. His Honour concluded that the Tribunal had performed that task.

48 As to the risk of the appellant re-offending, his Honour noted that the Tribunal at [107] of its reasons based on its earlier acceptance that the appellant would use his best endeavours to complete the program upon his release, found that if the appellant completed the CORE program, the risk of his re-offending would be low. His Honour found that the penultimate sentence of the Tribunal’s decision at [108] was predicated on the assumption that the risk of re-offending was small, but the Tribunal found that other factors militated against exercising the discretion not to deport the appellant. In those circumstances, his Honour did not accept that the Tribunal failed to make a finding on the risk of the appellant re-offending.

49 In his conclusion, his Honour found that the Tribunal was required to consider the case put by the appellant and deal with any discrete claim made. His Honour held that the Tribunal did not fail in this regard in respect of the "risks" issues. His Honour concluded by saying at [87]:

Although it did not make precise findings about the matters identified at [76] above, it did its best to offer a view about the potential for the occurrence of each risk and any consequent hardship. In a real sense, both topics are essentially speculative. It is not reasonable to expect the AAT to have made findings with greater precision in respect of the two relevant risks.

50 We see no error in his Honour’s approach.

51 For these reasons, the appeal should be dismissed with costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill and Allsop.

Associate:

Dated: 20 September 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V 324 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT V324 OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HILL, STONE & ALLSOP JJ
DATE:	20 SEPTEMBER 2004
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

STONE J

52 I have had the advantage of reading in draft the reasons of Hill and Allsop JJ and I respectfully agree with their Honours’ reasons and proposed orders. I would like, however, to make some additional observations.

53 This appeal has focused on the decision of the Administrative Appeals Tribunal (‘Tribunal’) rather than that of the primary judge. As I understand it, the appellant’s complaint is really about the findings that the Tribunal made, or allegedly did not make, when considering the merits of his application. The errors attributed to the primary judge amount to a claim that his Honour erred in not finding error in the Tribunal’s decision.

54 The appellant alleges that the Tribunal failed to make findings of fact on issues that it had identified as key issues. Senior Counsel for the appellant, Mr Ginnane SC, accepted that it was the Tribunal’s responsibility to identify the key issues and to make findings of fact in respect of those issues. The key issues identified by the Tribunal were (a) the risk to the Australian community of the appellant remaining in Australia; and (b) the risk to the appellant and his family should he be returned to China. The appellant submits, however, that the Tribunal failed (or ‘constructively failed’) to make ‘real’ findings of fact in relation to those issues. Mr Ginnane explained his use of ‘real’ and his allegation of ‘constructive’ failure as pointing to the Tribunal’s failure to describe, quantitatively or otherwise, the degree or extent of risk involved in either of the two key issues. He submitted that this failure amounted to a constructive failure to exercise jurisdiction and referred to the observations of Gaudron J in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 339-40:

‘ [T]here is said to be a " constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.’

55 Mr Ginnane submitted that although the Tribunal addressed the issues of risk, the way in which it did so constituted a ‘constructive failure to perform the task’ required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). With respect, I see this argument as a thinly disguised attempt to take issue with the factual findings made by the Tribunal and with the relative weight that the Tribunal attributed to the risks to the appellant and his family and to the Australian community. In response to questions from the Bench, Mr Ginnane accepted that the Tribunal could not be expected to make a more precise finding than the evidence before it allowed. He submitted, however that in those circumstances the Tribunal was required at least to say whether the risk was substantial or insubstantial.

56 The Tribunal’s findings are comprehensively discussed by Hill and Allsop JJ and it is not necessary for me to recount them here. The Tribunal explained in some detail the factors that led it to conclude that there was a risk to the appellant and his family if he were to be returned to China, as well as a risk to the Australian community if he were to remain in this country. The discussion of both those issues makes clear that the Tribunal found both these risks to be ‘real’, that is, ‘substantial’ as distinct from ephemeral. I am not aware of any authority that requires a Tribunal to quantify a risk, numerically or otherwise, or to state explicitly that it considers that the risk is ‘substantial’. It is sufficient for the Tribunal to consider the relative weight of competing risks and to make its decision as to which is the greater on that basis. In this case the Tribunal decided that the risk to the Australian community outweighed the risk to the appellant and his family. This was a proper exercise of its duty to make a decision as to the merits of the appellant’s application.

57 The use of the adjective ‘constructive’ to qualify ‘failure to exercise jurisdiction’ must be approached with caution. As used by Gaudron J in the passage quoted at [54] above, it indicates that a failure to exercise jurisdiction may extend to a purported exercise of jurisdiction if that exercise is fundamentally flawed in the manner mentioned by her Honour. In such cases the decision-maker can accurately be said to have failed to carry out the task required of it. However, to say that there has been a constructive failure to make findings of fact when actual findings have been made is to take issue with the adequacy of those findings. To suggest that the Tribunal erred because it did not use particular words, such as ‘substantial’ or ‘real’ is to subject the expression of the Tribunal’s reasons to over-zealous scrutiny: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 20 September 2004

Counsel for the Appellant:	Mr T Ginnane SC with Mr E Heerey
Solicitor for the Appellant:	Arnold Bloch Liebler
Counsel for the Respondent:	Mr G Livermore
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 August 2004
Date of Judgment:	20 September 2004