Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 | Case summary

The slide into drug use and dealing 3 Upon arrival here, the applicant lived with his aunt for a short time at Mount Pritchard in New South Wales, and later moved to live with his sister in Cabramatta. When his sister married, the applicant and his siblings again moved house to live in Fairfield West. The applicant attended several schools. However, as he was unable to speak or understand English and felt that he could not "catch up" with the other students, he abandoned his studies in his second year of secondary school. He had received no or minimal education in Vietnam. 4 Soon after leaving school the applicant began working for a bedding company, but due to a shortage of work he was laid off. The applicant then left home for a period of two weeks and, for the first time, used heroin. The applicant moved back home, and found another job. However this new employment was short lived. He moved, with his family, back to Cabramatta. 5 From this time the applicant began using drugs regularly and developed a heroin addiction. The applicant supported his addiction by committing various crimes. Between 1992 and 1998 he was convicted of a series of drug-related offences and was incarcerated twice. The convictions in most cases involved the sale of small amounts of heroin, to enable him to buy the drug for his own personal use. The applicant made various attempts to stop using heroin. He tried to wean himself from heroin by the use of methadone. He also tried to simply give up. However these attempts failed. 6 On 9 March 1995 the applicant was arrested for selling heroin to an undercover policeman. On 14 March 1995 the applicant was convicted, at the Liverpool District Court, of supplying a prohibited drug and sentenced to a minimum term of twelve months imprisonment with an additional term of four months. 7 At the time of the commission of this offence, the applicant was not an Australian citizen and had not been present in Australia as a permanent resident for ten years. On 16 December 1997 a delegate of the Minister ordered, purportedly pursuant to s 200 of the Migration Act 1958 (Cth) ("the Act"), that the applicant be deported from Australia. On 17 February 1998 a copy of that order was provided to the applicant and on 20 February 1998 he lodged an appeal against the decision with the Tribunal. The delegate's decision was affirmed on 13 January 1999 and the Tribunal later published its reasons. 8 Since the making of the deportation order, the applicant has committed a further drug-related offence, being convicted and sentenced on 31 August 1998. No ties outside Australia 9 The applicant's only relative living outside Australia is an uncle in China, whom he has never met and whose name he does not know. The applicant knows no one in Vietnam. One of his brothers has died in Australia. The other lives with his sister and her husband, apparently entirely respectable people. Relevant Legislation 10 The power to deport is granted by ss 200 and 201 of the Act: "Deportation of certain non-citizens 200. The Minister may order the deportation of a non-citizen to whom this Division applies. Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes 201. Where: (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or … (c) 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; section 200 applies to the person." 11 Also relevant to the application is s 499(1) (amended since hearing): "A person or body having functions or powers under this Act shall perform those functions, and exercise those powers in accordance with such general directions (if any) as are given to the person or body by the Minister in writing." 12 The following directions, which took effect on 21 December 1998, were issued by the respondent in a document entitled "Australia's Criminal Deportation Policy: Criminal Deportation Under Section 200 of the Migration Act 1958" ("the direction"). It is necessary to set out the direction in some detail: "GENERAL DIRECTION NO.9(1) MIGRATION ACT 1958 GENERAL DIRECTION UNDER SECTION 499(2) AUSTRALIA'S CRIMINAL DEPORTATION POLICY CRIMINAL DEPORTATION UNDER SECTION 200 OF THE MIGRATION ACT 1958 General Direction - Criminal Deportation - No.9 PREAMBLE This General Direction provides guidance to decision makers in considering the making of deportation decisions under sections 200 and 201 of the Migration Act (the Act). The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to deport from Australia those non-citizens who have abused the privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it. … PRIMARY CONSIDERATIONS 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. 7. In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are: (a) the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and (b) the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation. COMMUNITY EXPECTATIONS … 9. It is the Government's view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime… This is of particular important when the offences in question are in relations to drugs and crimes of violence… 10. It is the Government's view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection: (a) the seriousness and nature of the crime; (b) the risk of recidivism; and (c) the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons… 11. It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: (a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs. · Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people. · The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both [as] a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts lives of young Australians at risk should be viewed as completely unacceptable to the community. · Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community. (b) organised criminal activity resulting in a conviction in Australia; (c) sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence; (d) armed robbery (including robbery involving the use of imitation weapons); (e) murder, manslaughter, assault or any other form of violence against persons; (f) terrorist activity; (g) kidnapping; (h) blackmail; (i) extortion; (j) serious theft (including "white collar" crimes); · Such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government. (k) crimes against children: · Because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children. (l) any other crimes involving violence or the threat of violence; · Such crimes are of special concern to the welfare and safety of the Australian community. (m) ancillary offences in respect to any of the above offences, including: · convictions for attempting to commit any of the above offences; · convictions for conspiracy to commit any of the above offences; · convictions for being an accessory before or after the fact in any of the above offences. Decision makers should have due regard to the Government's view in this respect. 12. It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision makers should have due regard to the Government's view in this respect. The risk of recidivism 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: (a) the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case; (b) a person with several convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; (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. The likelihood that deportation of the potential deportee would prevent (or inhibit the commission of) like offences by other persons 14. It is the Government's view that this factor may be relevant to protecting the Australian community in various ways: (a) the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and (b) the deportation of a potential deportee who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from committing new offences. For example, the potential deportee may be a ringleader whose deportation may reduce the likelihood that his or her associates will commit other offences. Decision-makers should have due regard to the Government's view in this respect. Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community 15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision-maker's understanding of the community's attitude to the potential deportee's offences. Decision-makers should have due regard to the Government's view in this respect. OTHER CONSIDERATIONS 21. It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include: (a) the degree of hardship that may be suffered by the potential deportee; and (b) the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family … 22. It is the Government's view that factors to be considered here include: (a) whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee; (b) while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported. (c) the degree and extent of the potential deportee's ties with the likely country of return; (d) the strength of other family, social or business ties in Australia; (e) social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and (f) the situation in the country of proposed return, including the overall environment, job opportunities, or possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternatively places of return should be considered if the situation warrants such consideration. Decision makers should have due regard to the Government's view in this respect. 23. The best interests of any relevant children are a primary consideration and are not considered under this heading. 24. It is the Government's view that factors to be considered here include: (a) the effect deportation would have on any marital or de facto partner, including whether he or she would leave Australian with the deportee and whether this would impose undue hardship on the non-deportee partner; (b) the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them; (c) social ties developed after the liability for deportation arose, especially after this liability had been brought to the notice of the offender, may be given less weight; and (d) the views (if any) of the victim or victims of the crimes committed by the potential deportee. Decision makers should have due regard to the Government's view in this respect. INTERNATIONAL OBLIGATIONS … 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)(18) 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 the 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 Refugee 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 [A]rticle 33(1). 31. Notwithstanding International obligations, the deportation power must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be deported in the interests of the Australian community ultimately lies within the discretion of the responsible Minister." The Tribunal's Decision 13 In his decision, a Deputy President of the Tribunal set out the applicant's criminal history. He then went on to discuss at length the nature of the applicant's heroin addiction and the attempts, which in the Tribunal's opinion were "desultory" and "never serious", that he had made to overcome his addiction. Finally, the Deputy President made several findings: "I am firmly convinced that the applicant is a weak-willed young man, easily led by others and that he will revert to his old drug habits the moment he meets up with his friends, all of whom seem to be involved in the drug culture… [The applicant] failed to convince me that he has any real desire to accept treatment which is likely to be effective, and absent effective treatment, he will almost certainly revert to smoking heroin. Like many other Asians (according to Dr Halder), the applicant resists the one drug [methadone] that may prove effective, believing that it will kill him, and will only take it in dosages which are inadequate to cure him of his addiction. His attempts to persuade me that he will seek other methods to cure him of his addiction have not convinced me either as to the genuiness of his motivation, or the effectiveness of the 'alternative medicine' of his choosing. The applicant may only be a foot soldier in the insidious drug trade, and his heroin dealing designed merely to feed his own habit, but it is enough to constitute an offence sufficiently serious to invite deportation. It is Government policy - a policy which I have no qualms in accepting as eminently reasonable - that 'it would be invidious if non-citizen residents who seek to profit from the supply of drugs, whether or not that profit is motivated by their own need for illicit drugs, were likely to be allowed to remain in Australia.' This man has grievously abused Australia's liberal immigration policy and his deportation will, hopefully, serve as an object lesson to other non-citizen residents who are tempted to deal in illicit drugs, that Australia will not tolerate such conduct, and if apprehended and convicted, deportation will generally follow as an inevitable consequence of such criminal behaviour… I am mindful that this man's deportation will have serious implications, both to him, his sister and her family. However, consistent with deportation policy, most weight should be given to the need to protect Australian society against criminal behaviour; conversely, less weight should be given to the views of the offender and his family and to the possibility of adverse consequences for them of deportation. For good measure, this man has little going for him. His English is barely adequate, he has no qualifications or usable skills apart from his brawn (which proved inadequate in his previous employment mending fences), his prison record is such that I am not hopeful that he will easily adapt to a free society. It says much about his character that he committed yet another drug-related offence whilst awaiting a hearing in this Tribunal designed to set his deportation order aside. In summary, this man has made little contribution to the Australian community and is unlikely to do so in the future, such contribution that he has made through desultory labouring jobs is outweighed by the cost to the community due to his offences, his periods of imprisonment and his treatment for his drug addiction. I accept the respondent's submission that the applicant has a high risk of re-offending and is unlikely to make a successful transition to lawful community life." 14 In response to submissions made to the Tribunal by Mr Bruce Miles, who also appeared on behalf of the applicant before this Court, the Tribunal member stated that: "It was urged upon me by Mr Miles that the applicant, having come here as a young child and [become] a drug addict whilst in this country, Australia has, as a matter of comity, an obligation and responsibility to keep him here. I reject this argument for a number of reasons. Firstly, it is somewhat harsh to blame this country for the fact that the applicant is a drug addict… Secondly, the applicant has made little attempt to assimilate into the broader Australian community - although arriving here as a young child, he still cannot read English and required an interpreter to understand the evidence. Finally, Mr Miles' submission echoes that expressed by Deputy President Bannon in Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544 in which the learned Deputy President expressed the opinion that: 'If Australia is prepared to accept migrants with children of tender years, it is not reasonable to deport to foreign lands the child of an Australian citizen simply because the child is a criminal and was born in a foreign country and is not naturalised. It is neither compassionate nor in the best interests of Australia to deport children arriving as migrants because of later crimes.' With all due respect to the learned Deputy President, I am satisfied that this view is neither consistent with the legislation nor the intention of Parliament. For good measure, it led Kelly J in Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 13 AAR 520 to observe that learned Deputy President in Gogebakan had failed to explain on what basis it was 'not in the best interests of Australia' to deport persons who arrived in this country as children but were later convicted of serious crimes. I perceive the Tribunal's function is to apprehend what is an acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his or her case, is at an unacceptable risk … I am satisfied that this function is not qualified in cases where an applicant arrived in this country as a child." Incorrect application of policy 15 It was conceded by the respondent that, at the time of making his decision on 13 January 1999, the Deputy President, through no fault of his own, had been led to believe that a Criminal Deportation Policy ("the policy") of the respondent, effective from 24 December 1992, was in force. Throughout his reasons the Deputy President makes reference to the policy and his decision was purportedly made in accordance with it. However, it was common ground that that policy had in fact been superseded by the direction, set out above and issued on 21 December 1998. 16 In many respects the policy and the directions are very similar, some of the passages contained in them being identical. However, there are differences. One essential difference between them is that the direction, by virtue of s 499 of the Act, is mandatory whereas the policy was non-binding; see Minister for Immigration Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 205 - 208. In the very similar circumstances that presented themselves in Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, Whitlam and Gyles JJ at para [12] found that this difference led the Tribunal into error because the Tribunal failed to ascertain "as a threshold question, whether [it was] under a statutory duty to regard itself as bound by government policy". Whitlam and Gyles JJ also demonstrated that there was a difference, arguably more favourable to the potential deportee under the direction, in the hardship test laid down by the two documents. Finally they held that it could not be said that remission of the matter to the Tribunal would be futile: it was not a foregone conclusion that the same decision must be reached if the direction rather than the previous policy were applied. 17 Katz J decided the matter on the basis that the policy was still in force for the purpose of the Tribunal's consideration of the matter. Relying on Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-22 (per Bowen CJ and Deane J), he stressed the necessity that, albeit on a "benevolent" construction of the Tribunal's reasons, it must clearly appear, explicitly or implicitly, that the Tribunal had (a) considered the propriety of a non-binding government policy and (b) indicated the considerations which had led it to the conclusion that "the particular circumstances were such as to make the preferable decision that which resulted from an application of the policy to the particular facts. In the words of Bowen CJ and Deane J: "It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it. An example of an area of decision-making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions. In practice, the borderline between the two classes of decision may well be blurred and it is inevitable that there will be cases in which it is difficult to discern, from the published reasons of the Tribunal, on which side of the border the particular decision of the Tribunal lies. It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved. Examination of the reasons for decision of the learned Deputy President in the present matter indicates that the decision which he reached was the result of the application by him of ministerial policy to his careful assessment of the factual material before him. We have experienced considerable difficulty in deciding whether that application of policy was the result of an independent assessment of its propriety and an independent determination that the circumstances of the case were such that the correct decision was that resulting from the application of that policy to the relevant facts. Smithers J has analysed the reasons for decision of the learned Deputy President. The matters to which he has pointed have ultimately led us, on balance, to conclude that the published reasons of the Tribunal indicate that the Tribunal failed to make such an independent assessment and independent determination and that, in the result, it failed properly to perform its function of reviewing the Minister's decision that a deportation order be made in respect of the plaintiff." 18 Katz J also stressed that as s 200 confers a discretion "which in its terms is unconfined, [accordingly] the factors that may be taken into account in the exercise of the discretion are … unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation" (per Mason CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40). Accordingly, it was not legitimate to rely on the (non-binding) policy as excluding a consideration not impliedly excluded by the subject matter, scope or purpose of the Act. 19 Before me, it was not disputed that the Tribunal was in fact bound by the direction, even though the respondent had failed to bring it to the Tribunal's notice. The significance of Whitlam and Gyles JJ's approach to the matter appears by contrast with the approach adopted by Emmett J at first instance in Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 492. At para [17] Emmett J said that: "The decision will not be bad unless it can be demonstrated that it was made otherwise than 'in accordance with' the Direction." I am bound by the decision of Whitlam and Gyles JJ and, with respect, I consider their approach to be correct, despite the prima facie attraction of Emmett J's approach. Accordingly, the Tribunal fell into error of law for failing to ascertain whether it was bound by the directions. That is, technically, enough to decide this case. However appeals are remarkably often brought in these cases. I would therefore add some other brief observations. Interpretation of the direction 20 On one reading of the direction (or the previous policy), a person convicted of drug trafficking would stand no chance of resisting deportation. It is implicit in the approach of Whitlam and Gyles JJ and also (indeed, more obviously so) of Katz J, that such a reading cannot be supported. The direction is to be read so as to ensure that it is not ultra vires: Pearce and Geddes "Statutory Interpretation in Australia" 4th edn, p 43. Section 499(2) provides that subs (1) "does not empower the Minister to give directions that would be inconsistent with this Act". The expression "this Act" must mean "this Act other than subs (1) itself". Section 200 gives the Minister a discretion to require, in effect, the banishment from Australia of an individual. Section 499(1) does not empower the giving of directions that would turn a discretion, touching "human fate" (to adopt a phrase used by Toohey J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407) 7into no discretion at all. It follows that there must be a genuine weighing of factors tending to opposite conclusions and no artificial limitation of such factors. It is clear that those factors include all matters relevant to hardship for the potential deportee and his immediate family. Genuine weighing of factors required 21 The importance of genuinely weighing all factors was even greater when the non-binding policy was in force. The Tribunal, in my opinion, misconceived its function in that respect. Reading the Deputy President's reasons benevolently, his process of reasoning was: (1) the applicant is a serious enough criminal to make deportation prima facie a reasonable option; (2) the applicant has scant prospect of rehabilitation, his crimes are related to his addiction and there is little realistic chance of the addiction being cured or overcome; (3) there will be hardship for him and his family; (4) "consistent with deportation policy", more weight should be given to "the need to protect Australian society against criminal behaviour"; that is, the extent of the criminal behaviour and the deterrent effects (both individual and possibly general) of deportation should be given priority; (5) conformably with that view, "the Tribunal's function is to … assess whether a particular applicant in the particular circumstances of his case … is an unacceptable risk"; (6) that function "is not qualified in cases where an applicant arrived in this country as a child". 22 On that reasoning, individual hardship to a likely recidivist and his family can never outweigh the potential for criminal harm to the Australian community which would flow from a decision not to deport him. Also, on that reasoning, it can make no difference whether and in what circumstances a potential deportee came to Australia as a child. This in my opinion represents a misunderstanding of the law. If there is no real risk of recidivism, it would seem to require an unusual case for it to be right to deport an offender, if there were any degree of hardship to him or his family in so doing. However, the question in this case is: if there is a strong or substantial risk of recidivism, does that outweigh all relevant factors tending against deportation, including hardship and the circumstances of the potential deportee's coming to Australia? The discretion as to whether to deport a human being was not constrained in the manner which the learned Deputy President seems to have considered it was. 23 There was no doubt that the applicant was at high risk of lapsing back into his addiction and satisfying it by returning to street-level retail distribution of small quantities of heroin. Of course that is an "unacceptable level" of risk. The question to be faced however was: what should be done as to deportation, given that risk and considering the circumstances of the applicant coming here and the very obvious hardships for him and his family, especially his sister. 24 In reality, the Tribunal did not go on to make that difficult assessment. This can be inferred from two matters. The first is that such little attention was paid to the circumstances of the applicant's entry into and remaining in Australia (in the latter respect it is quite clear that, on a practical matter, he had nowhere else to go). The policy stated: "A sensitive issue concerns the liability for deportation of an adult who arrived in Australia as a minor. It is not the Government's intention that such people should never be deported. Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crimes, deportation should be seriously considered" One looks in vain for the anxious discussion that this painful issue plainly warranted. 25 The second is that the Tribunal did not adequately address the hardships that were likely to be suffered by the applicant or his family. The Tribunal member noted, as outlined above, that: "I am mindful that this man's deportation will have serious implications, both to him, his sister and her family. However, consistent with deportation policy, most weight should be given to the need to protect Australian society against criminal behaviour; conversely, less weight should be given to the view of the offender and his family and to the possibility of adverse consequences for them of deportation" The Tribunal acknowledged that deportation "will have serious consequences" for the applicant, noted that the applicant's sister had suggested life for the applicant would be difficult because "there are no relatives or even friends there who could assist him", and rejected a suggestion made by the applicant that he would be imprisoned if returned to Vietnam. However, beyond this the Tribunal did not address the prospect of the applicant's hardship at all. 26 The Tribunal does not appear to have considered that: the applicant is effectively a stranger to Vietnam; he is divorced, by time, from its norms and practices; he does not know anybody there; his only remaining family members live in Australia; Vietnam is a notoriously poor country; the applicant is a heroin addict returning to a place with a third world level of medical services; his employment prospects in Vietnam are, to say the least, not encouraging; indeed, his survival prospects in Vietnam are unknown; he is accustomed to a first world standard of living; he is accustomed to the protection afforded by a first world welfare system, and he has spent a good deal of his childhood in Australia. All of these matters are important issues in determining the profound hardship likely to be suffered by the applicant, but contrary to paras [21] and [22] of the direction none of them was addressed by the Tribunal. (These matters are, of course, also relevant to the question of futility - see below.) 27 As to the hardship to the applicant's sister, if a moment's ordinary empathy for a woman, who had stood for fourteen years in a mother's place for her young troubled and troublous brother, does not bring home the enormity of her possible suffering if the applicant be deported, her own evidence surely might: "MS CARRINGTON: You told Mr Miles what you thought would happen to your brother if he went back to Vietnam, but how would you yourself feel if he went back to Vietnam? THE INTERPRETER: If my brother has to go back to Vietnam, for me I will feel, you know, kind of - it's very hard for, it make me feel kind of don't want to live really, and the other thing is that it will worry me and anxious. The reason is because in Vietnam we don't have any relatives and friends that can help him or can guard him. MS CARRINGTON: So you would be worried about him and you would be sad that he's gone? THE INTERPRETER: Yes, I'll be worried, you know, a lot, like I don't know what is going to happen to him there. MS CARRINGTON: Now, your brother has been going in the last five years, going to court and going to prison? THE INTERPRETER: Yes. MS CARRINGTON: And how has that made you feel? THE INTEPRETER: There is kind of, always there's hope that he will, you know, change. Of course there's disappointment there but always there's hope too, hope that one day he'll change. MS CARRINGTON: Does it also make you feel sad and worried about him? THE INTERPRETER: Yes. MS CARRINGTON: Your husband said yesterday that for the first and second time that he was in prison you would visit him sometimes? THE INTERPRETER: Yes. MS CARRINGTON: Did you also visit him in the more recent times that he was in prison in the last three years? THE INTERPRETER: For the last three years I haven't really visited him that much, but I used to phone, and when I talked to him I kind of tried to encourage him, you know, to change, because one thing is that I'm not in very good health during the last three years, and the other thing is that I have to go to work and for time, that I don't have much time. MS CARRINGTON: I understand. Thank you very much" There is no indication that the reality of the position had actually been put into the balance by the AAT. Futility? 28 The respondent submitted, however, that even if the Tribunal had fallen into error for the sorts of reasons outlined above, it would be futile to remit the matter back to the Tribunal because adherence to the new and binding direction would only fortify the Tribunal's conclusion that the applicant ought to be deported: see Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 401, Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 146 and 161 - 162, and Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 182. The submission however must fail for reasons similar to those which moved Whitlam and Gyles JJ in Rokobatini. 29 The direction envisages, as it must, since it cannot gainsay s 200, that in coming to its decision the Tribunal will embark upon a balancing process which weighs, amongst other things, the harm that a deportee is likely to do to the community if allowed to remain in Australia against any hardship that the applicant and/or his immediate family are likely to suffer if he is deported. It is true that the direction also envisages that the balance is to be weighted in favour of the protection of the community and against the interests of the deportee. As I have indicated, however, the direction should not be read as requiring that hardship be practically disregarded whenever a strong case of risk to the community is made out. The direction itself explains the overriding philosophy in its "Preamble": "The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to deport from Australia those non-citizens who have abused the privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it." (emphasis added) 30 When he was brought here and accepted as refugee, the applicant was a twelve year old child. He may be taken to have exercised no personal choice to come to Australia. Upon his arrival here, he apparently had inadequate exposure to educational opportunities in Australia; this is unlikely to have been the result of choices by him for which adult responsibility should fairly be imputed to him. His grasp in his early adult years of the concepts and law pertaining to Australian citizenship is unlikely to have been complete. His closest early emotional attachments had been severed. He was ill-educated. In these circumstances, he fell into heroin addiction. He has specific cultural difficulties, described by his medical practitioner, which render a therapeutic care for that addiction unusually difficult. He has become a small-scale street-level heroin dealer, plainly treated by every criminal court that has dealt with him as a very small and desperate fish: after repeated offending, his longest sentence was for 16 months. To say the least of it, it is hardly a foregone conclusion that he should be adjudged as "having abused the privilege of residence accorded to [him] by the Australian community". It is not a privilege that he sought. He had no real choice as an adult of where he might live. 31 Likewise, it is hardly a matter of instant recognition that, in their context, his "actions are so abhorrent to the community that [he] should not be allowed to remain within it". It is not to be forgotten both that even abhorrence has gradations, as the preamble itself recognises, and that "the community" is obliged to suffer the presence of a great many perpetrators of very abhorrent actions, whether because the offenders are not caught or because when they are, exile is not an available sentencing option. Whether deportation is available may be a somewhat adventitious circumstance. 32 The direction states: "The degree of hardship which may be suffered by the deportee … (b) while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported. Decision makers should have due regard to the Government's view in this respect." 33 The reasoning of the Tribunal accorded with the spirit of the direction to the extent that it analysed in some detail the seriousness of the applicant's crimes and the risk of recidivism (including an extensive discussion of the likelihood of the applicant's efforts to abstain from heroin succeeding). The Tribunal, as envisaged by the direction, concluded that the applicant's crimes of engaging in the heroin trade were extremely serious despite the fact that it appears that he had only done so to support his own habit. Further, the Tribunal was, with respect, clearly correct to find that the present risk of recidivism was high. 34 The Tribunal was no doubt correct to attribute substantial weight to those matters identified by the direction as being of importance, for instance community expectations. Yet the fact that it would be for the Tribunal to attribute weight, in accordance with the direction, as it sees fit, would not abrogate the Tribunal's duty under the directions actually to consider and to weigh the hardship that the applicant might face. The Tribunal is obliged to consider that balance. The direction clearly enough envisages, as in my view a valid direction must, that there may be cases in which, despite offending community expectations, the hardship that a deportee is likely to suffer is so overwhelming that he ought not be deported. The applicant has a powerful case of hardship. His crimes are a long way from the more serious instances of drug-dealing. 35 The failure of the Tribunal to follow the direction was in breach of s 499 of the Act and constitutes an error in the application of the law to the facts of the case. It is obvious, from my discussion of the factors apparently not really addressed by the Tribunal in the purported application of the erstwhile policy, that it would not necessarily be futile for the applicant to have his case considered in accordance with the law. He should have that chance. Other submissions 36 Various other matters were argued. Principally they sought to articulate a premise that the subject provisions might be used, or were here being used, for simply ridding Australia of long-term residents deemed undesirable on account of their criminal proclivities but whose presence in Australia was not itself unlawful. It was then argued that either the provisions themselves were unconstitutional or that such use of them was, as a matter of construction, not authorised because if they could be so used, they would be unconstitutional. A further submission was put that the applicant was still a refugee. I need not consider these matters to finality but the weight of authority appears to be against the submissions. Disposition 37 For the above reasons the application is allowed with costs and this matter is to be remitted to the Tribunal, differently constituted, for further consideration according to law. I certify that the preceding (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Hong v Minister for Immigration & Multicultural Affairs

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