Cheung C.K. v. Young, M. Minister of State for Immigration & Ethnic Affairs [1988] FCA 24

The evidence indicates that the applicant came to Australia in about 1983 as a stowaway on a vessel which sailed from Hong Kong to Sydney. In Hong Kong the applicant had been convicted of an offence which is referred to in the papers as a serious assault. The alleged offence occurred in 1976, when he was 21 years of age. The applicant was sentenced to seven years imprisonment. He in fact served something like four to five years before release. It was said that he was released early because of his good behaviour and there is nothing -to indicate that he has not been of good behaviour since his release from prison, that is to say, leaving aside the circumstances in which he arrived in Australia. Since Mr Cheung's arrival in Australia he has apparently worked; something which is prohibited under the Migration Act but not otherwise, of course, a criminal offence. Over the last year or so Mr Cheung has lived in a de facto relationship with an Australian citizen, Miss Anna Li. The Departmental officers who have investigated the matter accept that this is a permanent relationship and have assessed the matter upon the basis that Miss Li should be regarded as Mr Cheung's de facto wife. The officer who considered the application for resident

status was of the opinion that the circumstances relating to

this de facto relationship were such that they should outweigh the general principle ennunciated in the Minister's statement of 17 October 1985 in relation to the deportation of people

who are illegal migrants in Australia. He recommended the

However, when the matter went to the delegate he took a different view. The delegate, in para.19 of his Statement of Reasons, referred to the recommendation of the officer in regard to the grant of resident status and in para.20 he stated that he accepted that the applicant had a de facto relationship of over one year's standing with Miss Li. The delegate went on to say that he had examined the submission of Mr Barlow, the solicitor for the applicant, dated 6 January

1988. That submission is in fact an annexure to the Statement of Reasons and the delegate specifically says that he gave consideration to the letter. The delegate commented, "I accepted that a conviction has been recorded against Mr Cheung, however I am unable to accept the applicant's submission that he was innocent". In the letter of 6 January, Mr Barlow had referred in some detail to the circumstances of the offence. He gave a version of the event, which is consistent only with the innocence of the applicant, and he pointed out that the conviction was by a majority of the Court rather than a unanimous decision. The letter did go on to say, "Mr Cheung accepts that he was formally convicted of a serious offence and that the Department cannot look beyond the

I do not think that there is a significant difference between what was said by Mr Barlow in his letter and what was said by the delegate. I think that the delegate was simply saying that, so far as he was concerned, he had to proceed upon the basis that the conviction was a proper one. It is debatable whether what was said in Mr Barlow's letter should be described as a "Submission" of innocence or rather a statement of circumstances which would lead to a view that

there was innocence. But I do not think that anything turns

The substantial complaint which is sought to be made is that the delegate, in effect, dismissed the letter of 6 January 1988 by concerning himself only with the question of whether Mr Cheung was innocent of the charge of which he was convicted in Hong Kong. Mr Barlow had gone on to make other points in his letter. One of these was to draw attention to the fact that the applicant was only 21 years of age when the offence occurred. He is now 32 years of age and has had no criminal convictions since that time. Apart from migration offences, he appears not to have misconducted himself in any way. Mr Barlow also made the point that his behaviour in prison was excellent and earned him early release and he referred to proposed local legislation regarding the expungement of a criminal conviction 10 years after the date of an offence. He pointed out that this represented a policy that a person, particularly a young person, should not be regarded indefinitely as being of bad character because an

offence has been committed. I think that these were all

matters which the decision-maker was bound to take into account in considering the weight to be given to the

The difficulty I have with the applicant's submission is to draw the inference that these matters were not in fact taken into account. Mr Luu said that he read and considered the letter. There is no reason to doubt that statement. The only matters which Mr Barlow has been able to point to asa - basis for such an inference are, firstly, the statement in para.20 regarding innocence to which I have referred and, secondly, the fact that, in para.22, Mr Luu regarded the offence in Hong Kong as a factor to which he should give "considerable weight". These statements are not inconsistent with his having read, understood and considered the submission made in the letter of 6 January. Mr Luu was entitled, as a Matter of law, to take the view that, notwithstanding Mr Cheung's subsequent good behaviour and the general policy regarding expungement of criminal convictions, the conviction in Hong Kong should be regarded as worthy of considerable weight in the decision which had to be made. I may say quite frankly that I doubt that I myself would have given such weight to an offence which occurred so long ago and when the applicant was only 21 years of age. But the question of weight is a matter for the decision-maker and not for the Court. Unless the applicant can make good the case that Mr Luu failed to consider these matters, there is no legal error

It should be pointed out that the matter of the criminal conviction was only one of a number of matters which Mr Luu took into account adversely to the applicant in making his decisions. He also took into account the circumstances in which the applicant came to Australia, the fact that he did not make application for permission to migrate to Australia, the fact that the circumstance relied upon him for his application for residence -- that is his de facto relationship with Miss Li -- arose after his illegal entry into Australia and the fact that he did not make the application for residence until after his apprehension. The delegate was entitled to take into account all of these matters. The

I have considerable sympathy for the position in which the applicant finds himself; and indeed also for Miss Li. It is unfortunate that their relationship should be affected by a deportation decision, which may have quite catastrophic effects upon that relationship, and perhaps for them; but the Court is entitled to intervene only if it is

persuaded that there is an arguable case of legal error.

In the present case it seems that the evidentary position is unlikely to improve before the trial and, as I see it, if the matter went to trial on the present evidence, there would be no prospect of the Application succeeding. I am not persuaded that there is such a question about the legal

validity of the decision as to entitle the Court to intervene

by making an order staying the depor hearing. Consequently I refuse the

I refuse the application fo deportation order. I note an undert the respondent not to deport the app 10 February 1988. I order the appli application made today for a stay of over the principal proceeding to the

I certify this and the six (6) preceding pages to be a true copy of the Reasons for Judgment of

Appearance for the Applicant: Solicitors for the Applicant: Counsel for the Respondent:

aking given on behalf of licant prior to Wednesday cant to pay costs of the deportation. I stand