Do v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-01-27|Before: Mansfield J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 9 June 1999. The Tribunal affirmed a decision of a delegate of the respondent under s 200 of the Migration Act 1958 (Cth) ("the Act") of 20 July 1998 to deport the applicant. 2 Section 200 of the Act empowers the respondent to order the deportation of a non citizen to whom Div 9 of Pt II of the Act applies. Section 201 indicates that s 200 applies to a person, inter alia, who is a non citizen who has been in Australia as a permanent resident for a period of less than ten years, and who has been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year. The applicant is a citizen of the Vietnam. He arrived in Australia under an entry permit granted under the Special Humanitarian Program ("SHP") then in force, having arrived on 23 April 1987. He has not left Australia since that time. 3 On 2 November 1995, the applicant was found guilty of the offence of possessing heroin for sale. On 14 December 1995, he was sentenced to a term of imprisonment for four years. Consequently, s 200 applied to him as he fell within the terms of s 201. 4 Under s 499 of the Act, the respondent has given the General Direction - Criminal Deportation - No. 9 concerning matters to be addressed by delegates in the considering of deportation under s 200. Under that policy direction, a decision maker must have regard to the seriousness of the crime, the risk of recidivism, and the likelihood that deportation of the potential deportee would prevent or discourage similar offences by other persons. The Tribunal addressed each of those matters. It found that the applicant's crime was a serious one and that the likelihood of re-offending was high. It also found that the deterrent factor is "highly relevant" to attempting to protect the Australian community by deterring other non citizens from committing similar offences and by discouraging or preventing other persons from committing new offences. 5 General Direction - Criminal Deportation - No. 9 also identifies the following further matters to be considered in reaching a decision whether or not to deport a potential deportee: · the expectations of the Australian community, · in cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children, · the degree of hardship which may reasonably be expected to be suffered by the potential deportee, and · the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation. 6 The list is not comprehensive and does not purport to be. 7 The applicant was born on 29 April 1966 in Vietnam. He escaped from Vietnam in 1985, because he did not want to be drafted into the Army and because of the poverty that "is haunting my family all the time and family was continually harassed by the communists". He arrived with other boat people in Indonesia in 1986, and remained there in an internment camp until his arrival in Australia. His brother had escaped from Vietnam in about 1982, and is now an Australian citizen. 8 His brother sponsored the applicant to Australia under the SHP. 9 During his time in Australia, the applicant has lived for periods with his brother and his brother's family, and also for a time he formed a relationship with a woman and lived with her and her four children for a time. That relationship was not ongoing at the time of the Tribunal's determination. However, the Tribunal accepted that the applicant's nephew and a child of the woman with whom he had had that relationship would miss him if he were deported to Vietnam. It regarded the interests of those children as being of significant importance in considering whether to order the deportation of the applicant. 10 It also considered the question of hardship affecting the applicant if he were to be deported. He was not at the time of that decision in any defacto relationship, nor was he married. His former companion indicated that she would accept his deportation, and that it would not cause her undue distress or hardship. His parents are both living in Vietnam, and he has brothers and sisters living there. The Tribunal considered, however, that there was really no evidence to determine the strength of his ties to Vietnam. 11 The Tribunal then addressed the question of the consequences in Vietnam to the applicant if he were deported there. It determined that, because his relatives in Vietnam are not aware of the reason for his imprisonment, there is no reason to think that he would not be accepted by his relatives in Vietnam. The applicant also expressed concern that the local authorities would harass him. His brother had visited Vietnam in 1997 and was not harassed by the local authorities. The Tribunal had regard to an affidavit of an officer of the Australian Consulate General in Vietnam as to present day circumstances in which citizens of Vietnam now live. That evidence dispelled, in the Tribunal's mind, any concern that the applicant would be harassed by local authorities if he were to be returned to Vietnam. 12 That affidavit indicated that people who departed Vietnam illegally in the past have returned smoothly and are met on arrival and provided with financial assistance to re-establish their lives in Vietnam. Of the 100,000 or so people who have returned under the regime described as the international Comprehensive Plan of Action ("CPA") many thousands have been personally interviewed by officers of the United Nations High Commissioner for Refugees. There have been no reported cases of any kind of harassment or intimidation by Vietnamese officials at any level. It also describes how ex-boat people who had previously made their home in Australia have returned to Vietnam, and how many are prominent in business and commerce and have prominent roles in the local community. It also described that Vietnamese nationals who are deported to Vietnam do not face any additional punishment or sanction of any kind upon return, and that the Vietnamese government is not interested in the crimes a person may have committed whilst outside Vietnam.

"This evidence demonstrates the claims of danger at the hands of present-day civil authorities in that country [Vietnam] to persons returned to [Vietnam] by way of deportation from another country are misconceived. The affidavit establishes that civil rule in [Vietnam] is such that proper control is now exercised. From that point of view, return by deportation is not of itself a circumstance of hardship to an applicant in real terms." 14 The Tribunal also considered the evidence of levels of unemployment in Vietnam, particularly in the area in which the applicant's family lives. It had regard to the hardship unemployment might cause him in determining whether to make the deportation order. The Tribunal correctly directed itself that an order for deportation is not to be made as an act of punishment of an individual for a criminal offence. 15 Having considered those matters, the Tribunal ordered the applicant's deportation. 16 The error of law which, it was submitted, on the part of the Tribunal was its failure to evaluate the potential deportee's status as a refugee, and the relevance of his previous refugee status at the time of his entry in Australia on 23 April 1987. It is correct that the Tribunal did not specifically address those matters. The respondent contended that the Tribunal was not in error in having failed to do so.

17 The officer of the Australian Consulate General, whose affidavit was received in evidence, referred to the CPA in the following way:

"I also have responsibility for providing regular reporting on the return of Vietnamese to Vietnam and on residual matters relating to the now-concluded international Comprehensive Plan of Act (CPA). The CPA was established in the mid-1980's as a international multilateral program to provide a resolution to the issue of the Vietnamese boat-people in South East Asia. The CPA provided for resettlement in third-countries for those individuals who were found to be refugees and for the safe return to Vietnam of those who were found not to be refugees. Over 100,000 people were returned to Vietnam under the CPA."

18 It was asserted that that affidavit was in error because the CPA was established only in March 1989. The applicant's departure from Vietnam, the period of his residence in Indonesia, and his reception into Australia under the SHP all took place, therefore, before the commencement of the CPA. Thus, it was contended, the Tribunal erroneously understood that the applicant had entered Australia under the regime of the CPA. The significance of that alleged misunderstanding was that it failed to enable the Tribunal to appreciate that the applicant, although granted entry to Australia under the SHP, was also "recognised" as a refugee at that time. To establish the latter point, the applicant tendered on the appeal (by consent) a document issued by the Office of the United Nations High Commissioner for Refugees, October 1995, entitled "Information Package on the Comprehensive Plan of Action on Indo-Chinese Refugees. That information package includes a letter from the United Nations High Commissioner for Refugees ("UNHCR") Regional Representative dated 7 November 1995 describing the CPA as an international arrangement between fifty-one states which

"ended a ten year practice of conferring automatic refugee status and resettlement eligibility to those who left Vietnam and Layos." 19 Consequently, it was argued, that the applicant, although admitted into Australia under the SHP, was also received as a refugee and the Tribunal had erred in law in failing to consider the relevance of the fact of his being a refugee, both at the time of his admission to Australia and at the time of the determination of the deportation order. 20 The respondent consented to that material being received. It was not material before the Tribunal. If that had been the only material before the Tribunal, it may support the contention of fact for which the applicant contends. 21 However, I do not consider in the present case that the admission by consent of fresh evidence on this appeal to establish a fact, in relation to which the Tribunal is then said to have made an error of law, gives rise to an error of law on the part of the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The Tribunal is empowered under s 25 to review certain administrative decisions made in the exercise of powers under certain enactments. Its power is restricted to reviewing those decisions where an enactment provides for that review. An application for review of a decision by the Tribunal must contain a statement of the reasons for the application, except in respect of an application made under s 54(1) or (2) of the Australian Security Intelligence Organization Act 1979 (Cth). Under s 37 of the AAT Act, the person who made the decision that is the subject of the application for review by the Tribunal generally must lodge with the Tribunal: (a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and (b) every other document or part of a document that is in the person's possession or under the person's control and is considered by the person to be relevant to the review of the decision by the Tribunal. 22 Section 37(2) of the AAT Act then empowers the Tribunal, if it is of the opinion that particular other documents may be relevant to the review of the decision, to require those other documents to be produced for its consideration.

23 The Tribunal is then directed by s 39 to proceed in the following way:

"39(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his [or her] case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."

24 There is no suggestion that the Tribunal failed to comply with that provision. It then made its determination in accordance with s 43 of the AAT Act. There is no error of law on the part of the Tribunal in the matter in which it proceeded. 25 Counsel for the applicant pointed to the fact that the applicant's counsel in the Outline of Contentions to the Tribunal dated 29 January 1999, asserted that he had fled from Vietnam to avoid persecution and conscription into the Vietnamese army, and that he had a well-founded fear of being persecuted by government agents should he be returned to Vietnam, so that the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention") was relevant to the consideration of his potential deportment. I am satisfied, as contended by counsel for the respondent, that that foundation for his opposition to his potential deportment was abandoned in the course of the hearing before the Tribunal. The issue emerged principally in the course of final submissions. Counsel for the respondent indicated that there had been no submission to the effect that Australia's international obligations under the Convention warranted special attention in the case of the applicant because he was not a refugee when he came to Australia. Counsel for the applicant, in response, submitted that the applicant would face difficulties if he was returned to Vietnam and it was open on the evidence for the Tribunal to conclude that Article 33(1) of the Convention applies to his circumstances. The transcript then discloses that neither the Tribunal nor counsel for the respondent had anticipated that matter. Following some discussion, an adjournment was granted to enable counsel for the applicant to take instructions on whether the submission was sought to be maintained. Counsel for the applicant then said:

"I have taken instruction from my client and in relation to the Refugees Convention he has instructed me not to pursue that line of argument, that the matters that have been raised both by himself and in particular by Pastor Hung and Trung Huynh in relation to any difficulties he may face on return would be better considered under a hardship to the - there is one particular reference in the policy." That is a reference to the provision in the General Direction - Criminal Deportation - No. 9 which directs attention to the degree of hardship which may reasonably be expected to be suffered by the potential deportee. 26 In my judgment, the withdrawal of that line of contention to seek review of the initial decision of a delegate of the respondent is clear and explicit. That is particularly so having regard to the circumstances in which that occurred. I reject the submission that the withdrawal was ambiguous, and amounted only to counsel for the applicant saying that the issue was not to be further developed but that the Tribunal nevertheless should have understood counsel to say that the allegation was being persisted in. In my view, the words are unambiguous. 27 It was also argued that the Tribunal had a duty to consider the evidence before it in any event in relation to the question whether the applicant was recognised as a refugee at the time of his entry to Australia, and at the time of the hearing before the Tribunal, even though that issue was explicitly not pursued by the applicant through his counsel. If the applicant were in fact a refugee, and remained one, then it was necessary for the Tribunal (so it was argued) to consider those matters notwithstanding that the issues had not been pursued by counsel for the applicant. Counsel for the applicant pointed out that s 499(2A) obliges the Tribunal to comply with a direction given under s 499(1) of the Act, and that General Direction - Criminal Deportment - No. 9 contains the following paragraphs:

"28. In cases where issues of protection pursuant to the Convention and the Protocols Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration by the Minister as part of the exercise of the discretion to deport. 29. The critical issue is whether the life or freedom of a person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion pursuant to Article 33(1) of the Refugees Convention. This issue must be determined at the time the deportation decision is made. It should be noted that prior recognition of refugee status, while relevant, does not determine this issue. In other words, international law allows for the possibility that the person's refugee status may have ceased by the time deportation is considered. 30. If Article 33(1) does not apply to the person, there is no obligation on Australia to provide the person with protection under the Refugees Convention. If Article 33(1) applies, then the question is whether the person, having been convicted by a final judgment of a particularly serious crime, is a danger to the community, in which case the person cannot claim the benefit of article 33(1)." 28 I do not accept that contention. Paragraph 28 of the direction is enlivened only when such issues "are raised" before the Tribunal (or other decision maker). I have concluded in the circumstances that the issues were not raised before the Tribunal for its decision because of what was said by counsel for the applicant. I do not consider that, in those circumstances, the Tribunal erred in law in failing to address those issues. It is empowered at a hearing to make a decision by consent of the parties without further evidence being required: Re Lombardo and Commonwealth of Australia (1985) 3 AAR 537. In Repatriation Commission v Hughes (1991) 23 ALD 270 Beaumont and Hill JJ said at 275-276:

"As has been seen, at the commencement of the proceedings before the Tribunal, several potential issues were canvassed by the representatives of the parties. However, as the proceedings progressed, the parties' representatives came to appreciate that only one mater was seriously in contention between them. This issue was the time at which the deceased developed his smoking habit. In the course of their final addresses, the parties, by their representatives, agreed that this was the only matter for determination. The issue was, of course, a question of fact and it was perfectly proper and appropriate that the parties, with the benefit of professional advice, should inform the Tribunal that only that question remained for its determination. It is hardly necessary to say that parties should be encouraged to tender for determination by the Tribunal only those questions which are, in truth, contentious."

Einfeld J at 276 agreed with those observations. 29 There is evident common sense in their Honour's views. That is reflected in the practice of the Tribunal to hold a conference or conferences before a hearing to encourage the parties to resolve the matter or to limit the issues for determination. The practical consequences of the Tribunal being unable to act upon the agreement or acknowledgment of parties as to the issues important to determination of a review application, nor even to act upon an agreement as to the proper outcome of a review, are self-evident. It cannot have been the legislative intent to preclude the Tribunal from acting upon such agreements or acknowledgments. I respectfully agree with the views of Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 488 on those matters. The Tribunal is, of course, not bound to act upon concessions or acknowledgments made by a party or their representatives (see Re Martin and Commonwealth of Australia (1983) 5 ALD 277) but it is entitled to do so. There is no reason apparent in the present circumstances why the Tribunal should not have acted upon the intimation of counsel for the applicant that these views were not longer being pursued. A fortiori, there is no error of law shown on the part of the Tribunal is acting upon that intimation, once it is clear that it was entitled to do so. 30 As part of the agreement by which the Information Package on the "Comprehensive Plan of Action on Indo-Chinese Refugees" was tendered by consent, the respondent also tendered as fresh evidence, also by consent, records of the Department of Immigration and Multicultural Affairs containing details of the assessment and interview of the applicant at the time of his initial acceptance for entry under the SHP. Presumably the respondent would have adduced that material before the Tribunal had the applicant pursued these issues. That material clearly shows that the claim by the applicant to be a refugee was not accepted at that time, and he was not treated as a refugee at the time of his entry to Australia. In 1987 the provisions of the Act were much less complex than are now in force. Section 6A of the Act then provided for entry permits to be granted to non citizens only in certain conditions, which included a determination by the Minister that the non citizen had the status of refugee within the meaning of the Convention. Those provisions are discussed, for instance, in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, a decision much cited in relation to the determination of when a person is a refugee. 31 It was also an issue in that case as to whether a decision of the Minister, by his delegate, that a person did or did not have refugee status was a decision under an enactment within the meaning of that expression in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That fresh evidence indicates that the applicant's claim to have refugee status had been rejected when he was approved as a person eligible under the SHP. The material includes his application for refugee resettlement. It was rejected. That material shows that rejection of his claim to be a refugee was a prerequisite to him becoming eligible for the SHP. Consequently, on the fresh evidence, the applicant was not recognised as a refugee at the time of his entry to Australia. The general comments in the letter of the UNHCR Regional Representative dated 7 November 1995 referred to above could not serve to contradict the terms of the Act as it then stood or the contemporaneous records of the consideration of the applicant's claim to be recognised as having refugee status. 32 In any event, in my judgment, the material that was before the Tribunal leads to the same conclusion. The admission of the applicant into Australia was, on the evidence before the Tribunal, under the SHP. The material before the Tribunal included an instruction from the Department of Immigration and Ethnic Affairs (as it was then called) dated 23 November 1983 and contained instructions for the determination and processing of refugees. Clause A7 of those guidelines provides:

"Although not formally assessed for UNHCR Mandate status, Indochinese refugees are recognised by Australia as persons under UNHCR auspices in a "designated refugee situation". Clause A22 indicated that a designated refugee situation involved the allocation of a specified number of program places for entry into Australia and for the locating of Australian officials overseas to process applications, including for nationals or stateless former residents of Vietnam. It provided also for the SHP. 33 Specifically clauses A28 to A32 of those instructions provided that unsuccessful refugee applicants could be considered for entry under the SHP or under other migrant entry policies. Entry under the SHP was made on a case by case basis, in accordance with a separate instruction. That instruction was dated 31 March 1983 and was also before the Tribunal. That instruction describes the SHP in the following way:

"2. The SHP was developed to help people from a diverse range of minority groups with links with Australia. It was designed to enable the Government to respond compassionately to those who, regardless of their country of origin, were fleeing substantial discrimination or gross violations of human rights. The SHP was designed to be global rather than regional in application." 34 It was therefore a condition for inclusion in the SHP that a person be fleeing substantial discrimination or gross violations of human rights. It did not require such discrimination or violations of human rights (which for present purposes I assume to be of sufficient moment to constitute persecution, as that term is used in the Convention) is for one of the reasons identified in Article 1A(2) of the Convention, namely race, religion, nationality, membership of a particular social group or political opinion. Eligibility for the SHP was based on a case by case consideration. Those two instructions also expressly provided that to be eligible for entry under the SHP, the person must have been found ineligible for refugee or other migrant entry. It is specified that those seeking admission under the SHP should have been preselected to assess if they were eligible under existing migration categories or refugee programs. It was only if it was decided that a person who was a refugee applicant would be unlikely to meet the criteria for selection under the refugee program, that that person could be considered under the SHP. Consequently, on the material before the Tribunal, it was necessary for the applicant not to have been treated as a refugee entitled to an entry permit under s 6A of the Migration Act as then in force. In my view, therefore, on the material before the Tribunal, it must have decided on the facts that, at the time of his entry to Australia, the applicant was not recognised as a refugee under the Convention. Accordingly, there is in my view, no error of law on its part in failing to consider and determine that the applicant was a refugee recognised as such by Australia at the time of his entry to Australia and to then consider the implications of that recognition for the purposes of considering whether to deport the applicant. 35 Counsel for the applicant contended, in addition, that on the evidence before the Tribunal the applicant would now qualify as a refugee under the Convention, and that the Tribunal erred in law in failing to consider that issue. I have ruled earlier in these reasons that the Tribunal did not err in law in the circumstances in not discretely addressing that issue. In addition, in my view, the evidence relied upon by the applicant to make out that claim does not, and could not, lead to that conclusion in any event. I have made reference to the evidence of the officer from the High Commission. Counsel for the applicant also referred to three passages of evidence which touched on this issue. The first reference was to the evidence of the applicant. The substance of that evidence is set out in the following paragraph. 36 The applicant was born in Vietnam on 29 April 1966. He spoke of his family. He has a "north accent" in speaking Vietnamese because his parents were born in the north. His brother escaped from Vietnam because he was drafted into the army by the Viet Cong, and did not wish to serve in the Army. His father served in the south Vietnamese army. Following the change of government, his father was taken to a re-education camp and was forced to clear land mines. His family was poor, because the communist caused difficulties to the family by taking them to serve in the army. He escaped from Vietnam because he did not want to be drafted into the army. He was asked what would happen if he returned to Vietnam and he said that it was better to die in Australia than to die in Vietnam. If he had to return to Vietnam he would not have any money. His family is very poor. The communists would cause difficulties to him, because he escaped from the country and he is still of the age to be drafted. 37 The second witness whose evidence was referred to was Hung Nguyen. He is a pastor of the Vietnamese Evangelical church at Enfield. I did not find anything in the passages of his evidence to which I was referred which was of particular relevance to the applicant's present situation were he to return to Vietnam. The third witness was Trung Huynh. He is an acquaintance of the applicant in Australia. Again, there is nothing in his evidence to which I was referred which relates to the applicant's present circumstances were he to return to Vietnam. 38 The Tribunal considered, and rejected, the evidence of the applicant that the government of Vietnam would cause difficulties for him if he returned to Vietnam. There was no submission that it had erred in law in reaching that conclusion. It also had regard to the hardship he might suffer if he were to return to Vietnam. Again, there was no submission that it had erred in law in making its findings on that matter. The hardship claimed was not because of a Convention reason. Consequently, in my view, there was no evidence before the Tribunal which could indicate that the applicant was at risk of persecution for a Convention reason if he returned to Vietnam. There can be no error of law on the part of the Tribunal which could impinge upon its decision in failing to consider this issue, when on the evidence its consideration of the issue on the material before it could not have led to a finding that, at the time of the hearing, the applicant had the status of a refugee under the Convention. 39 In my judgment, this appeal should be dismissed with costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Date: 27 January 2000 Counsel for the Applicant: Mr J Gibbons with Ms S Lorenz

Solicitors for the Applicant: Parks Legal Service Inc

Solicitors for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 6A, 200, 201, 499

Australian Security Intelligence Organization Act 1979(Cth)s 54(1)

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