Cong Tam Dang v Minister for Immigration & Multicultural Affairs

The reasons for decision of the Tribunal 6 After some introductory observations the Tribunal set out what it viewed as the issues arising in the proceedings. In order to understand the issues in these proceedings it is necessary to set out a passage from the Tribunal's decision in full: 3. A deportation order, sending a person back to another country, more often than not has serious consequences for the family of that person and more particularly for the person deported, particularly where he or she may no longer have any connections with that country, may not speak its language, and no longer has any immediate family there to help in the re-integration of that person that country. It follows that when considering an appeal against a deportation order, a tribunal seized of the matter must carefully weigh up the issues for and against deportation, looking for any extenuating circumstances which may tip the balance in favour of allowing the appeal and permitting that person to remain in Australia. Thus on the one hand, the tribunal must have regard to the potential hardship to the applicant if deported, the effect of his or her deportation on his or her immediate family, particularly if there are young children involved, as well as the potential benefit the Australian community may derive from his or her continue presence in this country, to name but a few. On the other side of the scales, the Tribunal must have regard to the national interest, including Australia's criminal deportation policy, the need for the protection of its citizens, assessing the potential or likely cost to the community in permitting the person to remain in this country - and by "cost" I am not simply looking at the issue in dollar terms, but on a broader basis. Thus, if the person, for example, has a bad criminal record, is he or she likely to re-offend if permitted to stay. 7 The Tribunal discussed the various offences for which the applicant had been convicted and the relocation of the applicant's family to Brisbane and his return to Sydney. It described in summary form the events of the evening of 20 December 1988. It then said: 10. What then are the factors which support upholding the Delegate's decision to deport the applicant? (Emphasis in original) 8 Having posed that question the Tribunal considered in more detail the nature of the offences that had been committed on 20 December 1998. As part of this discussion the Tribunal observed that the applicant had not been prepared to identify the other participants in the robbery and that in the result "there are still some four or five gangsters loose in the community who might have been apprehended or at least warned off further criminal conduct". The Tribunal then made some general observations about the mutual obligations arising from residency in Australia which included an obligation not to engage in criminal conduct. The Tribunal went on to deal with the question of whether the applicant had demonstrated remorse and concluded that from its observations the applicant did not feel any genuine remorse for the suffering he had inflicted on the family which was the subject of the robbery. The Tribunal said that the applicant struck it "as callous, with a blunted sense of right and wrong and with little regard for the feelings of others". 9 The Tribunal went on to pose a task for itself in these terms: 20. Notwithstanding that my first impression of the applicant was far from favourable, I shall now look at the factors which would support setting the deportation order aside. I shall set them out as favourably to the applicant as possible to see whether they suffice to even the balance, or even tilt it in his favour. 10 The Tribunal considered the circumstances of the applicant's family and described them as "decent, hard working … (and) model migrants". The Tribunal noted that the applicant's parents had separated as a result of the applicant's criminal behaviour for which the father had blamed the mother. The Tribunal indicated its impression of the father and that he had tried to discipline the applicant, had found it beyond him and had then washed his hands of any further attempts to assert his authority. The Tribunal indicated that that was not intended to be a criticism of the father who impressed it as an upright and honest person. The Tribunal indicated, however, that the father's inability to control his son supported its view that the applicant "proved to be recalcitrant, morose and not amenable to any form of discipline". The Tribunal also referred to the circumstances of the applicant's sisters and brother. 11 The Tribunal then noted that the applicant had spent just on half his life in Australia and that, having spent a large part of his adult life in prison, his contribution to this country was minimal. The Tribunal moved on to the conduct of the applicant in prison which it said could "hardly be described as exemplary". The Tribunal indicated that it did not make any adverse findings against the applicant on that matter having regard to the culture of prison life and the existence of "Vietnamese inmates who rule it over their compatriots". The Tribunal referred briefly to the applicant's employment and indicated it was satisfied that he had made every effort to find and hold down gainful employment. It did note, however, that it perceived a discrepancy in the applicant's evidence in that he had said he could not call his employer as a character witness because he would lose his job but that in another context the applicant had said the employer was aware of his criminal past. 12 The Tribunal then went on to explain why it had followed a course which had resulted in the hearing being adjourned. It said: 24. At the end of the evidence and before submissions, I indicated that the consequences for the applicant and his family in this case were so serious, that I would be reluctant to reach a final determination based merely on his criminal record and the evidence of family members on the likelihood of rehabilitation. I stated I would find it helpful if I had a report from Dang's probation officer, as I considered that this was not only vital in assessing his history since release from jail, but might ultimately tip the balance in his favour. The fact that I do not have such a report was said to be due to the fact that the relevant officer was currently in the United States, and that the failure to provide a report from another officer was due to the intervention of the holidays. As explanations go, I have heard more persuasive ones. Be that as it may, it was agreed between the parties that this report would be tendered in due course and, if either party wished to be heard on its contents, the matter would be re-listed for further hearing. 13 The Tribunal then considered the evidence which had been led as a result of its adoption of this course, namely the evidence of Mr Dinh who was the applicant's parole officer and a psychologist, Ms Anna Robilliard who had assessed the applicant at the request of his solicitors. The Tribunal referred to a number of the aspects of the evidence of Mr Dinh concerning what he had been told by the applicant and upon which he had based his assessment of the applicant. The Tribunal sought to demonstrate that the account given by the applicant to Mr Dinh of his history and in particular the events of the evening of 20 December 1988 were at odds with what really occurred. It is not entirely clear why the Tribunal did this and it is not entirely clear what view the Tribunal ultimately took of Mr Dinh's evidence. The Tribunal summarized it by saying that Mr Dinh's "report and evidence is somewhat qualified". 14 The Tribunal then dealt with the evidence of Ms Robilliard which the Tribunal analyzed somewhat critically. In the course of its discussion of her evidence the Tribunal said: Put crudely, I am satisfied that [the applicant] succeeded in "putting one over" Ms Robilliard, who clearly felt sorry for the father and was prepared to give [the applicant] the benefit of every doubt. 15 The Tribunal expressed the following conclusion in relation to the evidence of Ms Robilliard: 38. In the result, Ms Robilliard, though an impressive witness with impeccable qualifications, did little to give me any confidence that this man will become a troublefree member of this community. … 39. The above is not intended to reflect adversely on the expert witness, but merely to show that her evidence must be approached with some caution since her assessment was largely based on a flawed history and a psychological profile based on tests results which I view with some scepticism. 16 The Tribunal then dealt with one aspect of the assessment that had been made by Ms Robilliard concerning the difficulties associated with assessing whether the applicant felt remorse having regard to language problems. 17 The Tribunal then expressed its ultimate conclusions. It commenced by saying: 44. On the whole of the evidence, I am satisfied that this man poses an unacceptable risk to this community if permitted to stay in this country. [The applicant] is clearly a man above convention, especially the tiresome sort, like telling the truth and refraining from theft and other criminal activities. It follows that I am unable to accept that the intervening years have succeeded in reforming his fundamental character. … I consider that it is possible that he will revert to a life of crime. … Once I consider that recidivism is a possibility, even a remote one, given Dang's predisposition to violence, his quite apparent lack of genuine remorse, and the kind of criminal conduct that he has engaged in the past and may return to, I find permitting him to remain in this country to constitute an unacceptable risk. This is not outweighed by any apparent minor degree of rehabilitation that may have been achieved, as demonstrated by his lack of re-offending since his release from prison and his ability to gain and retain employment. (Emphasis added) 18 Following this passage is a passage of some importance in this appeal. The Tribunal said: 45. I am conscious that the effect of my decision will have a major impact on the family dynamics, particularly if the father is determined to accompany [the applicant] back to Vietnam. This is unfortunate and regrettable, but, alas, cannot be put in the balance once I am satisfied that the Australian community continues to be threatened by this man's continued presence in this country. It is no answer to say, as does [the applicant's solicitor], "that the deportable offence is not one of the examples of serious offences given by paragraph 12 of the Ministerial Policy as those that might render a person liable to deportation". Given the nature and savagery of this offence, it should certainly be included as justifying deportation. (Emphasis added) 19 The Tribunal's ultimate conclusion on this question of recidivism was that it found that even a small risk of reoffending was not acceptable.

The Ministerial guidelines 20 The criminal deportation policy of the Australian government which applied to the circumstances of the applicant was contained in a policy statement of the Minister effective 24 December 1992. It included the following: 7. Consistent with Government policy, most weight should be given to the need to protect Australian society. Conversely, less weight should be given to the views of the offender and that person's family and associates, and to the possibility of adverse consequences for them of deportation. … 9. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family. 10. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences. 11. Deportation of a person convicted of crime may be appropriate when a person: · constitutes a threat because there is a risk that he/she will commit further offences if allowed to remain; or · has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or · has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia. … 19. The most important broad criteria on which judgments will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued: · the nature of the offence as outlined in paragraph 12 and the length of sentence imposed by the court; · the person's previous general record of conduct. The total criminal history of a person should be given significant weight in making a decision to deport. A person who has been previously warned about the ability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning will be given serious weight in consideration of his case. A person with several previous convictions against Australian society should usually be judged in the light of that past behaviour; · the risk of further offences; · the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably expected to make; · the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia; · the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected; · any unreasonable hardship the offender would suffer; · ties with other countries; · the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government; · the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons. This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.

Issues and conclusions 21 Before dealing with the specific issues raised in this appeal it is appropriate to make some general observations about one aspect of the process of judicial review. It is now well established that in judicial review proceedings an unduly critical approach should not be taken to the reasons for decision of a decision maker. The authorities supporting this approach were considered by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and conveniently summarized by Kirby J at 291:

1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker.
3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.
4. Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned. It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous consideration taken into account or a conclusion reached which is wholly unreasonable in the requisite sense.

A court must accord some real latitude to a decision maker concerning the way their reasons for decision are expressed. However that does not provide a licence for a decision maker to use extravagant, offensive or unnecessarily colourful language. In the present case some of the language used by the Tribunal might be characterized in this way and may well have been seen by the applicant and his family as coloured. The decision of the Tribunal plainly had profound implications for the applicant and his family. Indeed the Tribunal acknowledged as much. The preparedness of an unsuccessful applicant and others with an interest in the application to accept the correctness of a decision may well be diminished by the use of inappropriate language. In the present case the Tribunal spoke of "gangsters" and "mobsters" though, it must be acknowledged, it accepted that the term "gangster" might not be an apt description of the applicant. Nonetheless those terms were used in the context of the Tribunal describing the crime of "home invasion" as "an introduced crime". On one view of this expression, the Tribunal was implying that it is a crime resulting directly from the recent immigration of peoples of different ethnic or cultural backgrounds and probably from Asia. Indeed the Tribunal spoke of the applicant having access to information relating to his local "Vietnamese Mafia" which apparently was a term not used by any witness or advocate in the proceedings. Later, in the context of discussing Ms Robilliard's evidence that the applicant does not have an atypical history for a young immigrant Vietnamese male, the Tribunal said:

It [the evidence of the psychologist] does little to reassure me that immigrants from that background "grow out of" their criminal instincts with advancing years. 22 Again this passage, on one view, may be thought to imply that Vietnamese males have some inherent predisposition to commit crime. 23 I accept as entirely reasonable the view the Tribunal took of the abhorrent nature of the crime in which the applicant participated on 20 December 1988. However the language to which I have just referred has the tendency to create the impression that the Tribunal's decision was coloured by a view about Vietnamese or at least young Vietnamese males. If it has created that impression in the eyes of the applicant or his family, it is unfortunate that the Tribunal deployed the language it did. 24 The first submission made on behalf of the applicant was that the Tribunal erred in law in relation to what counsel for the applicant described as the test the Tribunal applied to the risk of the applicant reoffending. Counsel referred to the passage in paragraph 44 set out earlier in bold in support of a contention that the Tribunal approached the matter on the footing that deportation is the prima facie result of any conviction for a deportable offence. Reference was made to the judgment of Brennan J, as President of the Tribunal, in Re Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36 at 38. However, what the Tribunal did in the present case, which it was plainly entitled to do, was to balance the risk of recidivism with the consequences to Australian society of further criminal conduct on the part of the applicant. As Brennan J said in Salazar-Arbelaez (supra) at 38: But the acceptable level of risk of further transgression after a section 13 (a predecessor of section 200) conviction nevertheless depends principally upon the nature and extent of the damage which further transgression would produce. The greater the damage which would be wrought by a further transgression, the lower is the level of risk which the community in general can be expected to accept. 25 Moreover the prevailing Government policy to which the Tribunal is entitled to have regard emphasises the need to protect the safety and welfare of the Australian community and the observations of Brennan J accord with notions embodied in paragraph 10, in particular, of that policy which is set out earlier. Counsel for the applicant also submitted that the Tribunal's determination on the question of risk of recidivism was based on unreasonable findings of fact. This contention I consider in another context shortly. 26 The next error of law identified by counsel for the applicant was that the Tribunal applied the wrong test in determining whether to deport. It was submitted that having regard to observations of French and Drummond JJ in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 211 it was necessary for the Tribunal to approach the matter on the footing that the Tribunal should first assess the benefits and detriments to the Australian community of deportation. If there is a net benefit then the Tribunal is to move on to consider hardship to the potential deportee. The specific passage in the joint judgment of French and Drummond JJ relied upon by counsel for the applicant was: The purpose of deportation set out in par 6 of the statement (the Ministerial Guidelines issued on 4 May 1983), required a consideration of the benefit accruing to the community as a whole from (the deportee's) removal and if there were a net benefit, then setting that off against the hardship to him and others. Understandably the policy statement gives primacy to the collective welfare of the Australian community and requires that to be identified and weighed against hardship to the offender. 27 This passage does not imply that the process of balancing involves a two step process. Reading the passage as a whole it is clear their Honours were saying the assessment of the decision maker involves a balancing of various considerations. I do not consider anything more is suggested. 28 A related submission was made by counsel for the applicant that paragraph 45 of the Tribunal's decision set out earlier indicates that the Tribunal discounted entirely the effect of the deportation of the applicant both on him and his family. Putting aside the unnecessary (and probably inappropriate) use of the word "alas", paragraph 45 viewed in isolation might be thought to evidence such an approach. However the approach identified by the Tribunal in paragraphs 3, 10, 20 and 24 indicates that the Tribunal was plainly alive to the need to consider the effect of deportation on the applicant and his family. Indeed the Tribunal adjourned the proceedings to enable material to be put to it on that very issue. It is likely that the words in paragraph 45 "cannot be put in the balance" are an inelegant way of saying that they do not tip the balance against deportation. I am satisfied that the Tribunal was aware that it was necessary to consider the impact of deportation on the applicant and his family and that it did consider it. 29 A particular criticism was made of paragraph 3 when the Tribunal indicated that as part of the balancing process Australia's criminal deportation policy was to be treated as on one "side of the scales". This is plainly wrong in the sense that the policy itself contemplates a process of balancing but I do not think the reference to it in this paragraph evidences any failure on the Tribunal's part to appreciate its task. Indeed the way the Tribunal went about considering the application suggests otherwise. 30 The third error of law identified by counsel for the applicant was that the Tribunal had failed to take into account relevant considerations. Counsel for the Minister accepted that the Tribunal was bound to take into account Australia's criminal deportation policy and particular elements of it which were material to the application having regard to the factual circumstances being considered. Counsel for the applicant identified two aspects of the policy that were not taken into account. The first was the degree of rehabilitation achieved by the applicant and the second was his contribution to the Australian community. Both are matters identified in paragraph 19 of the policy earlier set out. On the question of rehabilitation, counsel for the applicant submitted that the Tribunal did not take into account the training the applicant had undergone in prison, that he had complied with all parole conditions, and that he had demonstrated remorse. 31 As to that last matter it was expressly addressed by the Tribunal who rejected the evidence of the applicant. The applicant's conduct while on parole was also a matter the Tribunal considered. It was one of the issues relied upon by the parole officer in making his assessment about the risk of recidivism. Indeed the Tribunal quoted the passage from the parole officer's report where reference is made to the applicant's conduct while on parole. It may be accepted that the Tribunal was, at the least, sceptical about the assessment made by the parole officer. However it cannot be said, in my opinion, that it was a matter that the Tribunal failed to consider. While the Tribunal did not refer to courses the applicant had undertaken while in prison and made only passing reference to the applicant's employment, its approach to these matters does not evidence a failure to take into account an aspect of the Ministerial policy which was a material one in the circumstances of this case. 32 Moreover, the essential complaint of the applicant is that the Tribunal did not consider pieces of evidence rather than relevant factors. This is a distinction of some significance. It is a distinction discussed by R D Nicholson J in Walsh v Department of Employment Education Training and Youth Affairs, unreported, 9 April 1998. His Honour said: It is important to bear in mind also that Mason J in Peko-Wallsend at 39-40, when speaking about "relevant and irrelevant considerations", expressly spoke of "factors" or statutory criteria (express or implicit), not about bits or pieces of evidence. In Li Shi Ping & Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 Carr J (with whom Sheppard and Gummow JJ agreed) said at 236‑237: "In my view, the [appellants'] submission [that by failing to refer to certain DFAT cables the delegate's decision miscarried] confuses taking into account relevant considerations with taking into account particular pieces of evidence. The relevant consideration which the respondent was obliged to take into account was - what might happen to the appellants if they returned to China?" The Full Court's decision in Li Shi Ping was followed by French J in Xie Mian Shen v MIEA (unreported, Federal Court, 9 August 1995) where his Honour said at 15-16: "There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act. The allegations that the Tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the Tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the Tribunal failed to take into account relevant factors." 33 The last matter raised by counsel for the applicant was the approach taken by the Tribunal to the evidence before it and the findings of fact it either made or failed to make. 34 Counsel for the applicant undertook a detailed analysis of the reasons for decision of the Tribunal and findings of fact it made. He referred extensively to the documentary and oral evidence with a view to demonstrating that a considerable number of findings of fact the Tribunal had made were wrong. A significant number of the instances he referred to concerned issues of fact that were either trivial or irrelevant or both. Others concerned issues of greater substance though in relation to many of them counsel for the Minister was able to point to material which unambiguously justified the finding made. Nonetheless I think it can be fairly said that in each instance the Tribunal preferred a finding adverse to the interests of the applicant. 35 There were a limited number of material factual issues where, in my opinion, questions can legitimately be raised about the appropriateness of the finding (in the broadest sense) that was made. Illustrations of findings of this type were the finding that the applicant's recollection of the circumstances of an offence committed by him in December 1986 were "vague in the extreme"; that the applicant gave several different versions of what occurred on 20 December 1988; that the opinion of the parole officer that the applicant was presently a low risk to the community was based only on the applicant having cut his hair to secure employment and that he had helped his mother pay off debts; that the parole officer's report and evidence was qualified (if this means that the parole officer himself qualified his views in his report and/or his evidence); that there were serious discrepancies between the evidence of the applicant and what he told the parole officer about the state of his employer's knowledge of his prior criminal background; that the applicant had lied to the Tribunal about his state of knowledge concerning an outstanding traffic fine; that the psychologist's report had been prepared in the belief that the applicant had not played truant at school; that any feeling of remorse of the applicant (which the Tribunal did not accept existed) was a sudden one; and that the psychologist had conceded that the applicant might well reoffend again given the right trigger. 36 It was submitted by counsel for the applicant that matters of this type constituted unreasonable findings of fact or findings based on errors of fact. It is now well settled that an administrative tribunal can make erroneous findings of fact which are not reviewable: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-336. Moreover, the failure rationally to consider probative evidence is not, itself, a reviewable error of law: see Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1. 37 A number of the findings made by the Tribunal particularized in the paragraph before last could be characterized as not reasonably open on the evidence. However there was evidence before the Tribunal to support each of them. Thus, however unsatisfactory the decision of the Tribunal might appear to be, it is not attended with a reviewable error of law on this ground. 38 I dismiss the application. I do not, in the circumstances, propose to make any order as to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .

Associate: Dated: 2 February 1999 Counsel for the Applicant: M Vincent

Counsel for the Respondent: Legal Aid Commission of New South Wales

Solicitor for the Respondent: Australian Government Solicitor