Baldini v Minister for Immigration & Multicultural Affairs - [2000] FCA 173 - FCA 2000 case summary — Zoe

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Baldini v Minister for Immigration & Multicultural Affairs

[2000] FCA 173

Federal Court of Australia|2000-02-25|Before: Drummond J

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Court

Federal Court of Australia

Decision date

2000-02-25

Before

Drummond J

Source

Original judgment source is linked above.

Judgment (89 paragraphs)

[1]

1 This is an appeal from a decision of the Administrative Appeals Tribunal affirming the decision of a delegate of the Minister to deport the applicant pursuant to s 200 the Migration Act 1958 (Cth). Such an appeal lies to this Court only on questions of law: s 44 the Administrative Appeals Tribunal Act 1975 (Cth). 2 The applicant is now 36 years of age, being born in 1964. He is a citizen of Italy who arrived in Australia with his parents and older brother in July 1975. He was granted permanent resident status in 1976. In January 1982 he was convicted and sentenced to imprisonment for five years for the offence of robbery in company while armed with a .44 Magnum revolver. The Tribunal referred to the remarks of the sentencing judge to the effect that the applicant had come "very close to killing" the victim with the shot he fired during the robbery. In about April 1983, while serving the sentence for armed robbery, he was warned of his being at risk of deportation. The decision to deport him of 5 November 1998 was made in reliance upon this 1982 conviction. 3 He has a number of other convictions: in February 1991 he was convicted in the Brisbane District Court on a charge of break, enter and steal and was sentenced to imprisonment for three months, with probation thereafter for two years. In April 1991, in the Beenleigh Magistrates Court, he was convicted of assaulting police and sentenced to imprisonment for one month and also convicted of resisting police and stating a false name in respect of which small fines were imposed. In August 1991, he was convicted of possession of a prohibited drug, possession of an unlicensed pistol, negligent driving and unlicensed driving; the orders made included fines, release on a good behaviour bond and supervision. Finally, in December 1996, he was convicted of trafficking in cannabis and imprisoned for six years. As the Tribunal observed, the applicant's involvement in this offence was "profit oriented"; on his own admission, he was one of about 17 people involved in the cultivation in North Queensland and the distribution in Brisbane of cannabis with a street value according to the applicant of between $1M and $2M; the sentencing judge said that the applicant had primary responsibility for the distribution of the material. Though he would, by now, have been eligible for release under formal supervision, he remains in custody because of the issue of the deportation order. 4 At the time the Tribunal gave its decision, s 499 the Migration Act 1958 (Cth) provided:

[39]

12 It is apparent from all this that, though the Tribunal had in mind the applicant's other two sons in reasoning to its ultimate decision, it did not consider that it was appropriate to make any assessment of the effect of deportation of the applicant on his sons Eddie and Benjamin in order to comply with its obligations under s 499(2A) and pars 5, 6 and 16 to 20 of General Direction No 9. It can thus be seen that the Tribunal declined to make these assessments because of its understanding as to the proper interpretation of the relevant paragraphs of the Direction. 13 In my opinion, General Direction No 9 makes it clear that, before the Tribunal is required to consider the impact of deportation upon a child, more is required in the nature of a connection between a potential deportee and a child he has fathered than the mere fact of biological fatherhood. It is only "in all cases involving a parental relationship between a child or children and the potential deportee" that par 6(b) requires "the best interests of the child or children" of the potential deportee to be considered. This expression, "a parental relationship between a child … and the potential deportee", is wide enough to encompass not only the natural parents of children, but adoptive parents and also potential deportees who are in loco parentis to children who are neither their natural nor adoptive children. But if the connection between a child and the potential deportee is so tenuous that it cannot be described as a parental (or similar) relationship, then the Direction casts no obligation on the Tribunal to consider the impact on the child of deportation of the adult. 14 That this is the proper reading of par 6(b) of the General Direction is confirmed by pars 16 to 20, which deal at length with the evaluation the decision-maker is required to give to the best interests of such a child. Paragraph 16 spells out that it is only the interests of children "who are in a parent-child or other close relationship with the potential deportee" that need to be considered: this paragraph treats a parent-child relationship as one of the close relationships that require the child's interests to be considered in making a deportation decision in respect of the father. Paragraph 18 records the government's assumption that a parental relationship which will require consideration to be given to the child's interests will generally involve circumstances in which the child is with the parents, as does pars 19(c) and (d). Although pars 19(a) and 20(g) direct attention to "the nature of the relationship to the potential deportee" and "the amount of time that the potential deportee has actually spent with the child", pars 6(b), 18, 19(c) and (d) show that these matters need to be considered only in relation to children who are in "a parental relationship" with the potential deportee or who are in a parent-child or other close relationship with the potential deportee. 15 In his written statement of evidence to the Tribunal, the applicant said of his son Benjamin:

[51]

21 He also said that Eddie is "about 10, about 11". The only connection between the applicant and his son Eddie is the fact that he is the child's biological father. There has not been any contact between the applicant and this child even of the most tenuous kind. The evidence is that this has not been accidental, but the result of a deliberate decision on the part of the mother and her family to isolate the child from the applicant. It is open only to the interpretation that he has acquiesced in the attitude of the mother and her family and has made no attempt to make any contact with this child. 22 The Tribunal was right in thinking that the General Direction did not oblige the Tribunal to give any consideration to the best interests of Eddie in deciding whether or not to deport the applicant for the reason that Eddie was not a child with whom the applicant was in a parental relationship. 23 Nor do I accept the submission that the Tribunal erred by not making an express finding that no par 6(b) relationship existed between Eddie and the applicant. So long as it can be seen from the Tribunal's reasons (or, I would add, from the course of the hearing before the Tribunal) that it did turn its mind to whether a child of the potential deportee was in such a relationship to the latter that the Tribunal should consider the impact of deportation on the child, but then thought that the absence of a sufficient relationship made it inappropriate to do that, the Tribunal cannot be said to have made an error of law by failing to have "due regard" to the importance placed by the Government on the best interests of the child as one of the two primary considerations for the decision-maker when making a deportation decision. This was the approach of Carr J in Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 985 at [20], with which I respectfully agree. 24 During the applicant's cross-examination, the Deputy President expressed the view that it was only Joel "who comes into the picture" and "we can forget about the other two". Counsel for the applicant agreed. In his written submissions to the Tribunal, counsel resiled a little from this, submitting that it would be in the interests of all three of the applicant's children for him to remain in Australia, though counsel "acknowledged that the two eldest children of the applicant have not developed a close bond with him and therefore are not of great relevance to these proceedings". But the submission was nevertheless made in this Court that the Tribunal was in error in not considering the barrier that deportation would place in the way of Eddie and Benjamin getting to know their father should they ever wish to do that in the future. The decision in Hui was cited in support of this argument. 25 I do not accept the submission by counsel for the applicant that the Tribunal fell into error in not giving consideration to the possibility that it might be in the future interests of Eddie to have the opportunity of access to his father as he grew older. It is unnecessary to consider this submission in so far as it related to Benjamin because he is not a child. Before the interests of any child arise for consideration under the General Direction, the child must be in a parental relationship with the potential deportee. The entirely theoretical possibility that a child not in such a relationship with a potential deportee may wish to seek contact at some indefinite time in the future is an irrelevant consideration for the decision-maker. 26 Hui is of no assistance to the applicant. There, Carr J set aside a deportation decision on the ground of the failure of the Tribunal to do that which it was required to do by s 499(1) the Migration Act 1958 (Cth) and General Direction No 9, viz, to "have regard" to the best interests of the deportee's children when it made its decision. His Honour inferred that the Tribunal was unaware of the issue by the Minister of General Direction No 9 a few weeks previously and held that such consideration as it did give to the deportee's children did not, in fact, satisfy the requirements of that Direction. In a passage relied upon by the applicant, Carr J said, at [13]:

[61]

32 I am not at all certain that Benjamin can be regarded as "one of the applicant's 'other family members'". That expression in its application to relatives of the potential deportee may extend only to relations, such as children and parents, who are in some form of association with the person so as to comprise an identifiable communal group. But in the absence of a submission to the contrary, I will assume that Benjamin is a family member of the applicant within par 24(b) of the Direction. 33 In [44] of its reasons, the Tribunal identified the applicant's mother, his sisters and his brother as family members whose degree of association with the applicant was such as to make it necessary to consider the impact of deportation upon them. In [46], it listed these same relatives, as well as the applicant's son Joel, as persons who would suffer hardship as a result of the applicant's deportation. Its treatment of the applicant's mother, brother, sisters and Joel as persons likely to be affected by deportation shows that it was alert to the need to consider par 24(b) of the General Direction. The Tribunal was well aware of the existence of Benjamin, repeatedly acknowledging him as a relative of the applicant, and, in the written submission of the applicant's counsel, it had its attention specifically drawn, under the heading "Hardship to Australian citizens or permanent residents", to a submission expressly urging on the Tribunal the need to consider Eddie and Benjamin as persons, in addition to his mother, sisters, brother and son Joel, who had an interest in his remaining in Australia. 34 I do not accept that the Tribunal failed to give due regard to the Government's view, as it was required to do by par 24(b), to the effect deportation would have by way of imposing hardship on Benjamin. I do not think it overlooked Benjamin in this context. The evidence of the applicant's at best tenuous connection with Benjamin entitled the Tribunal to omit him from the list of persons it thought it was required to consider in giving effect to par 24(b) of the General Direction. I think a reading of the Tribunal's reasons and the exchange in the course of the hearing to which I have referred at [24] above show that it deliberately proceeded on the basis that this lack of connection entitled it to ignore Benjamin in considering par 24(b). By doing this, the Tribunal cannot be said to have failed to have "due regard", as required by par 24, to the Government's view as to the effect of deportation on Benjamin. Cf Hui at [20].

[85]

53 As required by the Direction, the Tribunal turned its mind to the question of contribution to the community in the course of evaluating the risk of recidivism. But it is clear enough that the Tribunal failed to have regard, in assessing the level of this risk, to the positive contribution to the community the applicant might make in the future. 54 The applicant submits that, in applying par 13(c), the Tribunal here dealt with the wrong issue in that it dealt only with past events. The applicant pointed to the evidence of the various training courses he had undertaken in prison and to the job offers now available to him if he were not to be deported. 55 What the Tribunal said in the passage relied on by the applicant shows it made an error of law in that it misunderstood that par 13(c) directed the decision-maker's attention to the potential deportee's expected future contribution to the community as an aid to assessing the overall risk of recidivism. But that does not compel the Court to set aside the Tribunal's decision. It was said in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 200 that the jurisdiction conferred upon this Court to consider error arising "on a question of law" under legislation not materially different from s 44 the Administrative Appeals Tribunal Act 1975 (Cth) "differs in important respects from the jurisdiction exercised by the Court upon an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth)" for an order of review in respect of a decision on the ground of, inter alia, error of law. But, in my opinion, the test for determining when an error of law will not require the decision reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to be set aside is broadly similar to the test for determining when an error of law will not require the setting aside of a decision the subject of appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth). In proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth), a decision will not be set aside for error of law unless "the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353. In proceedings under s 44 the Administrative Appeals Tribunal Act 1975 (Cth), the Court will not set aside a decision, despite established error of law, if it is clear that the Tribunal would have come to the same ultimate decision if it had not made that error of law: Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 413; Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 146 and 161 - 162 and Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 401. 56 For the reasons given, the Tribunal was required, by par 13(c) of the Direction, to have due regard to the Government's view that the positive contribution to the community the applicant might reasonably be expected to make in the future was a factor relevant to the assessment of risk of recidivism. 57 Despite the error in question, the Tribunal correctly took into account all of the applicant's own conduct now relied on in so far as it assessed whether the applicant had undergone rehabilitation to an extent that told against his being a likely recidivist. In [9] and [12] of its reasons, the Tribunal noted the training courses that the applicant had undertaken in prison and the job offers available to him if he were not deported; at [37] it noted that applicant's counsel identified the risk of recidivism as the critical issue in the case. The Tribunal then proceeded to discuss this issue, noting again in [38] and [39] the applicant's "impeccable" conduct during his last period of incarceration. In [39] of its reasons, the Tribunal recorded that it was not prepared to find that the applicant's conduct during his last period in gaol "evidences genuine rehabilitation", ie, it was not prepared to accept that that conduct, which included the undertaking by him of the various courses referred to by the Tribunal, provided reason to think there might be a change in his behaviour in the future. Then, in [40], it made the comment now the focus of complaint in this same context of dealing with the issue of risk of recidivism. That job offers are open to the applicant matters little once it can be seen that the Tribunal was not prepared to accept that his future conduct was likely to be different from his past behaviour. For the reasons given, it can be said with confidence the Tribunal would have come to the same decision in favour of deportation if it had not misunderstood par 13(c). Its error of law does not vitiate its decision under appeal.

[87]

58 Finally, the applicant submitted that the Tribunal erred in law in concluding that it merely "must have regard to" the General Direction when the Direction was, in fact, mandatory. Reference was made to Rokobatini v Minister for Immigration and Multicultural Affairs at 77; [12], where it was held that the Tribunal's failure in that case, due to its ignorance of the existence of the Direction, to ascertain "as a threshold question, whether [it was] under a statutory duty to regard itself as bound by government policy" as contained in the Direction led it into error of law. The result of this error was that the Tribunal determined the case by reference to an old policy "entirely superseded by the Direction", hence the need to set aside the decision. 59 But, while s 499 the Migration Act 1958 (Cth) obliges the Tribunal to comply with the General Direction in making a deportation decision, the Direction itself states that the way the Tribunal complies with the Direction is by having "due regard" to the importance placed by the Government on the two primary considerations (par (6)) and by having "due regard" to the Government's views on the various other considerations spelled out in the Direction, eg, those in pars (8), (9), (10), (11), (12) etc. The Tribunal commits no error by failing to acknowledge in express terms that s 499 obliges it to comply with the Direction if it has performed that obligation by having due regard to the various considerations which the Direction in terms requires it to take into account in making a deportation decision. 60 It is clear from the Tribunal's reasons that this is the course it followed. In [39] of its reasons, the Tribunal member stated that, when considering the risk of recidivism, "I must have regard to the Governments General Direction - Criminal Deportation - No 9; and in particular sub-para 13(a) …". In dealing with this same issue, it reminded itself of the need for "keeping in mind sub-para (c) of the aforementioned policy". In [41], when considering issues other than that of recidivism, the Tribunal expressed its satisfaction that "the applicant falls squarely into that part of the policy" set out in [9]. Although in dealing with the impact of deportation on Joel the Tribunal did not expressly refer to par 6(b) of the Policy, it clearly had this in mind in so far as it correctly identified the requirement to consider the impact of deportation on Joel, because the evidence showed that the applicant had "established some type of father/son relationship" with that boy. For the reasons given, the existence of such a relationship is a condition that must be satisfied before the Direction requires attention to be paid to the best interests of the child. When the Tribunal turned to the discussion of Teoh's case, it focused, in contrast, just on the question of what was the best interests of the child. In [45], it turned to an assessment of "the degree of hardship that will be suffered by the applicant if he be deported" as it was required to do by par 7(a) of the Policy. 61 A reading of the reasons as a whole shows that the Tribunal did comply with the General Direction in so far as it had due regard, in arriving at its decision to affirm deportation, to those of the considerations identified in the Policy as relevant ones, upon which the applicant relied. 62 The appeal will be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Baldini v Minister for Immigration & Multicultural Affairs

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