Baldini v Minister for Immigration & Multicultural Affairs

"(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(2A) A person or body must comply with a direction under subsection (1)."

5 It was common ground at the hearing before me that the Tribunal was thus required to comply with General Direction No 9, described as "Australia's Criminal Deportation Policy". This was issued by the Minister on 21 December 1998 and had effect from that date: par 34 and Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 30 AAR 74 at 77; [1999] FCA 1238.

6 It was said that the Tribunal erred in holding that only one of the applicant's three children, viz, Joel, rather than all three of them, needed to be considered for the purposes of the Tribunal's decision. This holding would amount to an error of law only if the Tribunal was required, in making its decision, to take into account the impact of deportation on one or both of these other two children. See Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12. 7 Joel was born in July 1991. He is the son of the applicant and his wife whom he married in 1990 and with whom he was residing at the time of his arrest on the trafficking charges. No complaint is made about the way in which the Tribunal dealt with Joel. It was said, however, that the Tribunal fell into error by not considering the impact deportation of the applicant would have on his other two sons, Eddie and Benjamin. 8 Argument turned on whether the Tribunal had complied with certain of the provisions of General Direction No 9, which contains the following:

5. The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations. The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7). A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

6. In making a decision whether or not to deport a non-citizen, there are two primary considerations:

(a) the expectations of the Australian community; and

(b) in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.

It is the Government's view that the decision maker must determine the best interests of any children aged less than 18 years who are in a parent-child or other close relationship with the potential deportee.

• The potential deportee's children who are aged 18 years or more have attained the age of legal majority. The interests of these children are not considered under this heading but are considered under the heading of "The degree of hardship to other Australian citizens or permanent residents, including the potential deportee's family" at page 10.

Decision makers should have due regard to the Government's view in this respect.

It is the Government's view that where there are two or more relevant children, the best interests of each child should be considered separately and also together with each other and with other members of the family. It should not be assumed that the interests of each child will coincide, and it may be that the bests interests of one child may indicate that the potential deportee should not be deported, but that the best interests of another child may point towards deportation. Decision makers should have due regard to the Government's view in this respect.

It is the Government's view that, in general, the starting point for any consideration of the best interests of the child would be that the child's best interests will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the potential deportee, include, but are not limited to:

(a) any evidence that the potential deportee has abused or neglected the child in any way, including physical, sexual and/or mental abuse; or

(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the potential deportee's unlawful conduct.

Decision makers should have due regard to the Government's view in this respect.

It is the Government's view that when considering what are the best interests of the child or children, regard should be had to:

(a) the nature of the relationship to potential deportee;

(b) whether the child is an Australian citizen or permanent resident;

(c) the likely effect that any separation from the potential deportee would have on the child or children;

(d) the likely effect on the child or children of leaving Australia if the parents decided to take the child or children with them from Australia; and

(e) the impact of the potential deportee's prior conduct on the child.

Decision makers should have due regard to the Government's view in this respect.

It is the Government's view that considerations which aid in assessing the above factors include:

(b) the time that the child has spent in Australia;

(c) any language barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children acquire new languages;

(d) any cultural barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances;

(e) any medical problems of the child and the likely access to relevant facilities in the likely country of future residence;

(f) the child's degree of emotional and psychological dependence on the potential deportee; and

(g) the amount of time that the potential deportee has actually spent with the child.

Decision makers should have due regard to the Government's view in this respect."

9 Though s 499(2A) requires the Tribunal to "comply with" General Direction No 9, in so far as that Direction deals with the significance of the fact that a potential deportee has children, par 5 of the Direction requires the Tribunal, in making a deportation decision, to "have regard to" the best interests of the children as one of the two primary considerations. Paragraphs 16 to 20 of the General Direction spell out how the Tribunal is to do this: it must "have due regard to the Government's view" with respect to each of the matters listed in the particular paragraphs in making its decision. 10 In the first part of his reasons, the Tribunal member said, of the applicant's three children:

"11. The applicant explained that he is the father of three Australian-born children, although he only has contact with one - Joel. For that reason, only Joel need be considered for the purposes of this decision. He was born on 2 July 1991 …"

11 In that part of his reasons under the heading "Decision", the Tribunal member returned to the children, saying:

"40. Given his total criminal history, and in particular the fact that the applicant committed a second - and very serious - offence after having been warned that he faces the risk of deportation … In other words, were it not for the fact that the applicant has a relationship with one of his Australian-born children, the issue would be so clear-cut as to put deportation beyond question.

43. What, then, are the factors which favour the applicant? It is a fact that he has fathered three Australian children, albeit having contact with only one - Joel - now seven years of age with whom he has, despite years of incarceration, established some type of father/son relationship. There is no doubt that this relationship will be permanently severed if the applicant is deported back to Italy. … I am satisfied from the evidence given at the hearing by the applicant, his mother and sister that Joel has formed a close bond with them, a bond which will be compromised if the applicant is deported. I am also acutely conscious that Australia has an obligation under an international treaty that in all actions concerning children, the best interest of the child shall be a primary consideration; see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. However, when weighed in the balance that interest must give way whenever a Tribunal considers that the safety and welfare of the Australian community is, as in this case, at risk by allowing the parent to remain in this country.

46. It follows, weighing up all these competing factors, the conclusion is inescapable that the hardships of deportation that will undoubtedly be suffered by the applicant, his son Joel, his mother, sisters and brother, great though they may be, are outweighed by the unacceptably high risk to which the Australian community would be exposed if this man were allowed to remain in this country. I am therefore satisfied that it is Australia's best interest that the applicant be deported."

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:

"As a result of a very brief relationship in 1979, a girlfriend at the time gave birth to a son called Benjamin. I have never lived with the mother or with Benjamin as a family unit although I have had occasional contact with him over the years."

16 In his oral evidence, he said that Benjamin was born "I believe shortly before I went to gaol" and that he was not in a relationship with the mother. He explained the circumstances of Benjamin's conception a little later:

"You asked me before if there was a relationship [with Benjamin's mother] and I said 'clearly not'. What that was, was a one-night stand and I hadn't seen that girl since. Then I went to gaol and then I was - it was afterwards that I was been made aware that I actually had a child.

When afterwards?---It was after - when I was in gaol. It was probably prior to coming out which was somewhere in January, maybe '85, maybe '84.

So basically your understanding - when was Benjamin born?---I had never - I have never - I had never seen Benjamin till I actually came out of gaol. I have never seen him.

But when was he born? 1980, 1979?---It would have been in 1980.

And you have only been held in custody since October 1981?---Yes.

So you didn't know before even going into custody in October 1981 that Benjamin was born?---That's right."

17 He was unaware of Benjamin's existence when interviewed in prison in May 1983 by one of the respondent's officers. He did not offer any evidence in explication of his statement that he has had occasional contact with Benjamin over the years. 18 The sketchy evidence which was all that the applicant chose to produce with respect to the nature of his connection with Benjamin is incapable of supporting a finding that there was a parental relationship between them at the time the Tribunal had to make its decision. The Tribunal was right in taking the view that pars 6(b) and 16 to 20 did not require it to consider the impact of deportation of the applicant on Benjamin. 19 In any event, Benjamin was, at the time the Tribunal made its decision, over 18 years of age, being born, according to the applicant, in 1980. For this reason also, the Tribunal was not under any duty imposed by s 499(1) and the Direction to consider the impact of deportation of the applicant on him. The applicant's answer to this was that it was still necessary for the Tribunal to consider the impact of deportation in relation to Benjamin by force of par 24(b) of the General Direction, a submission to which I will return later. 20 The applicant's written evidence concerning Eddie is in brief compass. He said:

"After my release from jail in the mid 80s, I continued to live in Brisbane.

I had another brief relationship with a woman and she gave birth to a son called Eddie. Her family were steadfastly opposed to any involvement with me and I had no further contact with the family or the child."

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]:

"However, there was no consideration whatsoever of the possibility that it might be in the future interests of the children for them to have the opportunity of renewed access to their father as they grew older. Inquiries might result in the conclusion that such an opportunity would not be in their best interests at all. But the Tribunal simply did not address that possibility. …" (emphasis added)

27 It is clear from his Honour's decision that he dealt with the case as one involving a deportee who was in a parental relationship with his two young children at the time deportation was ordered, although that relationship was interrupted by his imprisonment and contact had been limited to periods of short access of which right the deportee had ultimately ceased to avail himself. Carr J said at [17]:

"… Paragraph 6 of the Ministerial Direction makes it clear that in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children are one of two primary considerations. It was not suggested that, on the facts of the present matter, there was no parental relationship between the applicant and his children."

28 The fact that the existence of such a relationship was common ground was essential to his decision that the Tribunal fell into error by not considering the interests of the children in accordance with General Direction No 9. His Honour thus made the comment, at [13] of his reasons set out above, which is relied upon by the applicant here in the context of a case in which there had been in the past a sufficiently substantial association between the children and the deportee to make it common ground that there was a parental relationship between them. The existence of that relationship made the possibility of future contact between the children and the deportee a matter of more than theoretical concern and thus a consideration which the Tribunal was bound, in the circumstances of that case, to have regard to in order to comply with the Direction. 29 The applicant also contended, in reliance on Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, that the Tribunal, in considering whether to make the decision it ultimately did for the applicant's deportation, was bound to treat the best interests of all of the applicant's children - Eddie and Benjamin, as well as Joel - as a primary consideration, as a consequence of the Australian Government's ratification of the United Nations Convention on the Rights of the Child. Articles 3 and 9 of the Convention are set out at p 286 in Teoh. A child for the purposes of this Convention is any person under 18 years of age: Article 1. So Benjamin's position is not relevant on any view. But, as Carr J observed in Hui, at [9]:

"… Teoh is not authority for the proposition that in all actions concerning children, the best interests of the child are to be a primary consideration. That would be to incorporate the United Nations Convention on the Rights of the Child ('the Convention') into our municipal law. The High Court explained in Teoh that ratification of the Convention was a positive statement by the Executive that it and its agencies would act in accordance with the Convention. That statement founded a legitimate expectation, in the absence of statutory or executive indications to the contrary, that administrative decision-makers would act in conformity with the Convention. The legitimate expectation could be displaced by such statutory or executive indications."

30 The Direction read with s 499 of the Act is, in my opinion, a successful attempt by the Legislature and the Executive to overcome the difficulties referred to in cases such as Tien v Minister for Immigration and Multicultural Affairs (1998) 53 ALD 32 at 56 that the Government of the day encountered in seeking to displace the Teoh principle by Executive action such as the issue of the Ministerial statements of 10 May 1995 and 25 February 1997 referred to in Tien at 54. In my opinion, pars 5 and 6 and 16 to 20 of the Direction contain such an elaborate regime with which the Tribunal must, by force of s 499 of the Act, comply in a case in which it is required to consider the interests of a potential deportee's child that there is no room for finding in Australia's ratification of the Convention a basis for any legitimate expectation on the part of a potential deportee that the interests of his child will be, in terms of the Convention, "a primary consideration". 31 As I have noted, the applicant contended that, though Benjamin was no longer a child, the Tribunal fell into error by not having regard as required by par 24(b) to the effect deportation would have on Benjamin. Paragraph 24(b) appears under the following heading:

"The degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family

24. It is the Government's view that factors to be considered here include:

(b) the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them."

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].

35 The applicant also contended that the Tribunal's decision was infected with reviewable error because there was no material before it capable of supporting its conclusion that "the applicant at least speaks fluent Italian, albeit with a Neapolitan accent". 36 A potential deportee's fluency in the language of the country to which he may be returned is not identified in the General Direction as a factor which the decision-maker is required to consider. But given that the deportation order would result in the applicant's return to Italy, a country he left when only eleven years old and that he is now in his mid thirties, it was relevant for the Tribunal, in accordance with pars 21(a) and 22(c) of the General Direction, to take into account his Italian language skills in considering the degree of hardship which may be suffered by the applicant if returned to Italy. The respondent did not dispute this. The finding complained of appears in the following passage of the Tribunal's reasons:

"[13] The applicant asserted that he would not be able to cope if he were deported back to Italy, a country which he described as foreign to him, and 'not [his] home'. The applicant contemplates that the language barrier will be a problem for him, as he described his use of the Italian language as 'not too good'. However, when I asked him in what language he spoke with his mother, he replied: 'Neapolitan'. Given that he speaks up to four times a day on the telephone to his mother, the latter communicating with the Tribunal fluently through an Italian interpreter, the Tribunal is satisfied that the applicant at least speaks fluent Italian, albeit with a Neapolitan accent."

37 In his written statement, the applicant, who came from Naples, said:

"My family are Italian and come from that tradition. My parents spoke Italian as their first language right throughout their life although we learnt English. I picked up English fairly quickly when I first arrived and over my life, English has become my first language. Italian is very much a second language. In fact, the Italian that my family speak is a particular dialect of Italian from the Naples area. There are other dialects of Italian from the northern parts of the country which are completely incomprehensible to me. These days I can understand Italian when it is being spoken but I tend to stumble a bit with speaking it. Through lack of use, my Italian language skills have deteriorated over the years. I would have a great deal of trouble immediately if I was sent back to Italy because of the wasting away of these language skills."

38 But it is clear that there was evidence upon which the Tribunal could conclude that he was not only able to converse but to converse fluently, at least in the Neapolitan dialect of Italian. He gave the following oral evidence:

"What language do you converse in with your family?---Napolitan (sic) with my mum; English with my two sisters and my brother, and I always throw a couple of English words when I speak Napolitan (sic) to my mum, as she does with me."

39 The evidence was that he had a close relationship and very close contact with his mother. He spoke very frequently with her. The Tribunal was entitled to conclude that the applicant's mother spoke English poorly - she gave evidence through an interpreter and the applicant said "Italian" was always her first language - and that she was likely to converse with the applicant in the Neapolitan dialect of Italian, if not in "Italian". There was thus ample evidence to entitle the Tribunal to find that the applicant speaks that dialect of Italian fluently. 40 Its actual finding that he speaks fluent Italian with a Neapolitan accent was wrong. The Tribunal, in considering the question of the applicant's fluency in Italian in the context of assessing the degree of hardship which he might suffer by return to Italy, concluded that his fluency with the language extended to "Italian" which he spoke with "a Neapolitan accent", when the evidence justified a conclusion that his fluency extended only to the Neapolitan dialect of Italian. It did not err in holding that he had Italian language skills; its error was as to the extent of those skills. But that, in my opinion, is properly characterised as an error of fact, not law. It cannot be characterised as a finding made without any evidence to support it and is thus not an error of law.

41 Next, the applicant contended that the Tribunal erred in its conclusion that "as both Dr Curtis and Dr Kingswell noted, the issue of recidivism is an inexact science, and the only helpful indicator to future behaviour is a person's past behaviour". It was said that the expert medical evidence did not provide any support for the finding in the last part of this passage. 42 Dr Curtis, the applicant's psychiatrist, in response to a question about the risk of the applicant re-offending said:

"… people like me, those psychiatrists, and I think other disciplines, as well, are not good at predicting future behaviour so I acknowledge that. In my own experience, I think that past behaviour is the only really good indication we have of future human behaviour. Now, on that basis, Mr - there's a weighing up to be done.

Now, to answer - the short answer of your question is that, I mean, one has to say, I say, that there's a risk to be taken. I mean, there has to be an acknowledged re-offending risk given the history of the man and the type of personality that I'm describing, but in fairness, if I could just say it again, I would weigh in that - the recent incarceration and what I took to be genuine reports from this man that he'd worked hard to make it a positive rehabilitation experience rather than the type of struggle that he reported that he'd indulged in earlier."

43 Dr Kingswell, the psychiatrist called by the respondent, said in answer to a question about the applicant's risk of recidivism:

"… I don't think I could make any comment about his likelihood of reoffence that would be based on anything other than a lay person's guess or actuarial data.

Right, and you weren't attempting [in your report] to put forward a view as to this question of recidivism at all?---I have no view about the question of recidivism at all."

44 When pressed further by the Tribunal member about the risk of recidivism by the applicant, Dr Kingswell said:

"… I think it would only be to add my prejudices to the things. It looks like ---

I don't want your prejudices, I want your clinical observation?---Well, there are no clinical observations to be made here. The role of the psychiatrist here would be no different to anybody else looking at this sort of history. I mean, I can give you an answer based on actuarial data, but I'm sure you know that yourself.

I can't---?---That the more offences you commit, the more you are likely to commit in the future …"

45 Neither Dr Curtis nor Dr Kingswell, in their respective reports, dealt with the question of risk of recidivism. 46 Both psychiatrists made it clear that the assessment of the applicant's risk of recidivism was not within their expertise as medical specialists. Both emphasised how difficult a task it is to predict the likelihood that a particular offender will re-offend and how it was not a matter upon which psychiatric opinion evidence could properly be given. Both, in effect, said that such a prediction could only be made on the basis of common sense indicators, particularly past behaviour (although Dr Kingswell also referred to statistical information apparently recording levels of re-offending by particular categories of offender). 47 Against the background of this evidence I do not read what the Tribunal here had to say as a summary of the psychiatric evidence: I read the passage in the Tribunal's reasons relied upon by the applicant as noting what the two psychiatrists had to say about the imprecision involved in attempting to estimate risk of recidivism and in then recording the Tribunal's own conclusion as to past behaviour being the only helpful indicator to future behaviour. 48 I therefore do not accept that this statement by the Tribunal reveals any error whether of law or fact on its part.

49 The applicant next submitted that the Tribunal erred in law in applying par 13(c) of the General Direction by referring to "… the applicant's contribution to the Australian community has only been negative, but considering his poor work history, he has been a drain on the country's resources …", without attempting to make any assessment of the contribution the applicant might make to the community in the future. 50 This paragraph of the Direction provides:

13. It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government's view in this respect. In particular the following factors will be relevant to the assessment:

(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make."

51 In terms of the Direction, the assessment of the positive contribution to the community the person in question may reasonably be expected to make is relevant only to the assessment of the risk of recidivism. The theory behind this part of the Direction apparently is that, if there is reason to think that the particular person may undergo further rehabilitation and may make a positive contribution to the community in the future in some respect, that is a factor telling against the likelihood of the person re-offending. Such future contribution is not a freestanding consideration that the Tribunal is bound to take into account in the balancing exercise involved in arriving at its decision. The Tribunal is only required to take such evidence as there may be on future contribution to the community into account in assessing the risk of recidivism. It was in the course of considering this risk that the Tribunal made the comments the subject of present complaint. 52 What the Tribunal here said was:

"40. Given his total criminal history, and in particular the fact that the applicant committed a second - and very serious - offence after having been warned that he faces the risk of deportation, I am satisfied that there is a real risk or (sic) recidivism which is not far-fetched or fanciful. Consequently the scales must come down heavily in favour of deportation when it is borne in mind that a primary consideration whether or not to deport a citizen is the expectation of the Australian community that it will be protected and not put at risk. For good measure, and keeping in mind sub-paragraph 13(c) of the aforementioned policy, the applicant's contribution to the Australian community has not only been negative, but considering his very poor work history, he has been a drain on the country's resources. In other words, were it not for the fact that the applicant has a relationship with one of his Australian-born children, the issue would be so clear-cut as to put deportation beyond question."

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.

The Tribunal's duty under s 499 the Migration Act 1958 (Cth)

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.

Associate: Dated: 25 February 2000 Counsel for the Applicant: DP O'Gorman

Solicitor for the Respondent: Australian Government Solicitor