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[2001] FCA 470
Federal Court of Australia
2001-04-27
Mr P, Spender J, As Weinberg J, Marshall J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 7 September 2000, the applicant, Mr Ronald Bridges, filed a Notice of Appeal from a decision of the Administrative Appeals Tribunal ("AAT") given on 10 August 2000. In its decision the AAT affirmed the decision of a delegate of the respondent to order Mr Bridges' deportation. The hearing of the appeal took place on 28 February 2001. Mr S Walker of counsel appeared for the applicant. Mr P Macliver of counsel appeared for the respondent. 2 The applicant's Notice of Appeal outlined three grounds of appeal. Additionally, Mr Walker informed the Court that he proposed to rely on a new ground of appeal. The new ground alleged that the AAT had taken into account irrelevant considerations in coming to its decision. 3 Mr Macliver ultimately did not oppose leave being granted for the additional ground to be raised, but opposed any suggestion that the application be adjourned on account of Mr Walker's late discovery of the new ground. The Court declined to adjourn the matter and proceeded on the basis that Mr Walker would submit a written reply to the oral submissions of Mr Macliver. Mr Macliver was offered the opportunity of responding in writing to Mr Walker's written reply. All written submissions were filed and served by 4 April 2001. 4 I will firstly consider the original grounds for appeal raised in the Notice of Appeal. I will then consider the additional ground raised at the hearing.
Grounds for Appeal Raised by the Notice of Appeal 5 The grounds for appeal raised by the Notice of Appeal were: "(a) That the applicant ought to be permitted to adduce fresh evidence not available at the time of the hearing regarding his accommodation prospects in the UK. (b) That on the basis of the fresh evidence the decision reached by the Tribunal is not the correct or preferable decision. (c) The Tribunal erred in the exercise of its discretion in deciding to confirm the deportation order by failing to take into account the hardship the applicant will suffer." 6 Mr Walker did not direct any submissions to these grounds but did not abandon them. The first two grounds were conceded to be covered by the judgment of Spender J in Servos v Repatriation Commission (1995) 56 FCR 377. As Weinberg J said in Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 ("Percerep") at 495: "It is, no doubt, rare for the Court when hearing an application in the nature of an appeal pursuant to s 44 of the AAT Act to receive evidence which was not before the Tribunal. In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 Spender J expressed the view that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act does not permit the reception of further evidence which was not before the Tribunal, a proposition which is generally unassailable. The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim."
7 I do not consider that the evidence concerning the applicant's accommodation prospects fits into the "very limited circumstances" referred to in Percerep. 8 The third ground in the original application is factually incorrect. The AAT dedicated a section of its decision to consideration of the hardship that Mr Bridges may suffer by reason of his deportation. The AAT prefaced the relevant section of its decision by saying: "The other considerations that I now turn to are essentially hardship factors both to yourself and to Australian citizens and permanent residents."
Additional Ground for Appeal - Irrelevant Considerations 9 The applicant's additional ground for appeal was submitted as follows: "The Tribunal erred in law by taking into account irrelevant considerations, namely evidence and material relating to counts 5 and 6 of the convictions sustained by the applicant"
Background 10 On 28 February 1996, Mr Bridges was convicted and sentenced in the Supreme Court of Western Australia to a total sentence of ten years imprisonment for the following offences: "Count 1: Unlawful and indecent dealing with a child under the age of 14 years. Sentence: 1 year and 6 months imprisonment - concurrent. Count 2: Unlawful carnal knowledge of a girl under the age of 17 years by a guardian. Sentence: 2 years imprisonment - cumulative. Count 3: Unlawful carnal knowledge of a girl under the age of 17 years by a guardian. Sentence: 2 years imprisonment - cumulative. Count 4: Unlawful carnal knowledge of a girl under the age of 17 years by a guardian. Sentence: 2 years imprisonment - cumulative. Count 5: Sexual penetration without consent. Sentence: 4 years and 6 months imprisonment - cumulative and taking into account 18 months in custody. Count 6: Sexual penetration without consent. Sentence: 4 years and 6 months imprisonment - concurrent." 11 At the time the offences referred to in counts 1 to 4 inclusive were committed, Mr Bridges had been in Australia as a permanent resident for less than ten years. The offences referred to in counts 5 and 6 occurred at a time when Mr Bridges had been in Australia as a permanent resident for more than ten years. 12 Pursuant to s 200 of the Migration Act 1958 (Cth) ("the Act"), the Minister may order the deportation of a non-citizen to whom s 201 applies. Section 201 applies to non-citizens who commit an offence if the offence was committed when the non citizen "had been in Australia as a permanent resident… for a period of less than 10 years" and "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." 13 Consequently, the decision to deport Mr Bridges was specifically made on the basis of counts 1 to 4 only. They were the only offences that could be the subject of the deportation having regard to the terms of s 201. The primary decision of the respondent's delegate was based on those counts, although the delegate was aware of the convictions on counts 5 and 6.
The AAT Decision 14 The transcript of the hearing before the AAT was available to the Court. The following interaction between the AAT Deputy President, Ms Thipthorp (solicitor for the respondent) and Mr Bridges occurs at p 2 of the transcript dated 7 August 2000: "Ms Thipthorp: ... the applicant was convicted of offences from 1985 until 1994 and convicted in 1996 of six counts involving various sexual offences against his adopted daughter, Maxine Howe. I notice the deportation order refers to four but there are ... Mr Bridges: There are six counts, that is an error. The D President: … I suppose it is only a small matter but [the deportation order] simply refer (sic) to four of the six but from my reading there were six offences. Ms Thipthorp: There were six offences and it is probably an error, sir. I am just wondering whether the actual delegate's decision referred to six? Yes, the delegate's decision, page 52, referred to six, page 52 of the T documents. It appears that there is an error in the deportation order. The D President: Yes, very well." 15 The delegate's decision, "page 52 of the T documents", refers to counts 5 and 6 in the following way: "As well as the offences described as counts 1 to 4, Mr Bridges was also convicted of: Count 5: Sexual penetration without consent and sentenced to 4 years 6 months imprisonment; Count 6: Sexual penetration without consent and sentenced to 4 years 6 months imprisonment." 16 As noted, under s 201 of the Act the deportation order can only be based on the first four counts. The delegate's decision, fairly read, went no further than that. Otherwise there would have been no need to separately refer to counts 5 and 6. The solicitor was in error when she suggested that there was a mistake in the deportation order. The relevance of the mistake for current purposes is that she led the AAT into believing that the deportation order was based on all six counts. The applicant, appearing without legal representation, agreed with the solicitor and thereby contributed to the error. 17 In his ex-tempore reasons for decision the Deputy President recorded the fact that Mr Bridges was convicted on six counts. He did not identify the first four counts as being the only ones relied upon to establish the deportation order. The AAT considered all six counts in considering the degree of risk to the community in allowing Mr Bridges to remain in Australia. The Deputy President said that: "… the six offences for which you were convicted and sentenced were committed between 1985 and 1994 from when your daughter was 13 to 23 years of age... The seriousness of your offending is in my view heightened by the continuity of your behaviour over a long period of time."
Was there an error of law? 18 It should initially be noted that the AAT was entitled to consider counts 5 and 6 in its review of the delegate's decision. However, the AAT did more that just consider counts 5 and 6 in that it appears to have assumed that the relevant convictions for the purposes of the deportation order were the six counts, not just the first four counts. In this respect, it is highly arguable that the AAT took into account irrelevant considerations in the course of its reasons for deciding to affirm the decision of the delegate. 19 However, even if the AAT committed an error of law, such error does not automatically result in the Court making an order setting aside the AAT's decision. An error of law must be material to the AAT's decision before such an order will be made. 20 In Hyundai Automotive Distributors v Australian Customs Service (1998) 81 FCR 590 ("Hyundai") , a Full Court of this Court said that: "It is now well accepted that not every error of law discovered by this Court in the reasoning of the Tribunal will result in the matter being remitted. The error in question must be material to the Tribunal's decision before this course will be adopted: Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 401; BTR Plc v Westinghouse Brake & Signal Co (Australia) Ltd (1992) 34 FCR 246 at 253-254; 106 ALR 35 at 41-42 per Lockhart and Hill JJ; Owens (AJ) v Repatriation Commission (1995) 59 FCR 559 at 570; 38 ALD 481 at 509; Zhang Jia Qing v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 519 at 531. An error of law may be material if its correct resolution might affect the decision. We say "may" because the application of the correct law to the facts may involve questions of fact and degree which are the province of the Tribunal and not this Court: cf Commissioner of Taxation (Cth) v Brixius (1987) 16 FCR 359 where a question of fact and degree involved no question of law." (Original emphasis). See also Morgan v Minister of Immigration and Multicultural Affairs [1999] FCA 1059 at [7] as per Hill J.
Consideration 21 I now turn to consider whether the AAT's decision might have been affected by its apparent mistake as to the identity of the convictions which underpinned the deportation order. 22 In the applicant's Further Submissions it was submitted that: "The Tribunal's misapprehension is fundamental because it goes to the jurisdictional foundation of the deportation order." 23 Strictly speaking, the AAT's misapprehension regarding counts 5 and 6 is of no relevance to its consideration of the deportation order's jurisdictional foundation. Any one of the counts 1 - 4 is sufficient to provide jurisdiction for the making of the deportation order under ss 200 and 201. The fundamental issue regarding error of law does not concern jurisdiction, but rather whether the AAT's mistaken belief that counts 5 and 6 formed part of the reasons underlying the establishment of a deportation order materially affected the AAT's review of that order. 24 The AAT's primary consideration in conducting its review of the delegate's decision was "the expectation of the Australian community". This was said to have two aspects: · the expectation that the community will be protected and not put at risk, and · the expectation that non-citizens who commit crimes that are abhorrent to the community will be removed from Australia.
Expectation that the community will be protected and not put at any risk 25 In considering the risk to the community and its need for protection, the AAT identified three relevant factors. They were: " (a) the seriousness and nature of the crime;
(c) the likelihood that deportation would be likely to discourage similar offences by others." 26 In considering the first factor, the AAT referred to the relevant Ministerial Direction for deportation cases and observed that it nominated "sexual assaults on children among the very serious offences". The AAT then held that: "Your offences against your daughter which extended over a long period fall into this [very serious offences] category. The comments of the sentencing Judge on your behaviour reveals exploitation of your daughter in a calculating and degrading fashion for your own sexual satisfaction. Although the six offences for which you were convicted and sentenced were committed between 1985 and 1994 from when your daughter was 13 to 23 years of age, the sentencing Judge noted that there was overwhelming evidence that the sexual abuse commenced when your daughter was much younger. The seriousness of your offending is in my view heightened by the continuity of your behaviour over a long period of time." 27 The question then arises as to whether the AAT would have been likely to take a different view if it considered the relevant crimes only to be those found in counts 1 to 4. 28 Counts 1 to 4 are sexual offences which are very serious. They extended over a long period of time - about three years. There is no reason to consider that counts 1 to 4 alone do not reveal exploitation of Mr Bridges' stepdaughter "in a calculating and degrading fashion for (Mr Bridges') own sexual gratification". The specific mention of the "six" offences by the AAT was in the context of the length of time over which the conduct extended. Although the three years over which the first four counts extended is obviously shorter than the ten years over which all six counts extended, I consider the AAT would have found the conduct very serious had it only focussed on the first four counts. 29 In considering the "risk of recidivism" the AAT noted that Mr Bridges had "no other convictions". If the AAT had considered the first four counts only in assessing "the seriousness and the nature of the crime", it would have had to consider counts 5 and 6 under the topic of the risk of recidivism. It was spared the necessity to do so given the way it approached the issue of the seriousness and nature of the crimes. At the very least no adverse consequences were visited upon Mr Bridges by the failure of the AAT to specifically consider counts 5 and 6 as further offences under the topic of the risk of recidivism. 30 The third factor (the likelihood that deportation would be likely to discourage similar offences by others) was described by the AAT as "the general deterrence factor". This factor was not seen by the AAT to have any relevance to Mr Bridges.
Expectation that non-citizens who commit crimes that are abhorrent to the community will be removed from Australia 31 In regard to the expectation that non-citizens who commit crimes that are abhorrent to the community will be removed from Australia, the Deputy President of the AAT held: "I have no doubt that the Australian community regards sexual offences against children as abhorrent…My understanding of community attitudes to your offending requires me to give this factor considerable weight."
32 As noted above, counts 1 to 4 are sexual offences which are very serious. I consider that had the AAT only focused on counts 1 to 4, it would have come to the same conclusion.
Conclusion 33 An examination of the reasons of the AAT, including the section of its reasons in which hardship to Mr Bridges is considered, does not show that any particular view expressed by the AAT was dependent on the existence of six deportable offences rather than four. Consequently, I am of the view that if the AAT erred in law by taking into account irrelevant considerations in considering all six offences as the grounds upon which the deportation order was based, the error was not a material one in the Hyundai sense. I consider that the AAT would have come to the same decision had it recognised specifically that only the first four counts were the foundation for the deportation order.
34 The Court will order that the application be dismissed with costs, including reserved costs, if any. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Solicitor for the Applicant: Wojtowicz Kelly
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 27 February 2001
Bridges
Minister for Immigration & Multicultural Affairs
(1995) 56 FCR 377
(1998) 86 FCR 483
(1998) 81 FCR 590
(1989) 86 ALR 399
(1992) 34 FCR 246
(1995) 59 FCR 559
(1997) 149 ALR 519
(1987) 16 FCR 359