Hui v Minister for Immigration and
[1999] FCA 985
At a glance
Source factsCourt
Federal Court of Australia
Decision date
1999-07-21
Before
Emmett J, Carr J
Source
Original judgment source is linked above.
Judgment (10 paragraphs)
Introduction 1 This is an application by way of an appeal from a decision of the Administrative Appeals Tribunal, given on 28 January 1999, affirming a decision of a delegate of the respondent, made on 28 September 1998, under s 200 of the Migration Act 1958 (Cth) (Òthe ActÓ), to deport the applicant. The relevant effect of s 200 (when read with s 201) in the present matter is, in summary, that because the applicant has been in Australia for less than ten years and because he has been convicted in Australia of an offence for which he has been sentenced to imprisonment for not less than one year, the respondent may deport him.
Factual Background 2 The applicant was born in Western Samoa on 1 March 1958. When he was 15 years old he moved to New Zealand and became a citizen of that country. The applicant has been convicted and fined for minor offences both in Western Samoa and in New Zealand. They included convictions for wilful damage and common assault. He visited Australia briefly between 2 and 12 October 1988 but returned to New Zealand. The applicant settled in Australia on 9 June 1990 and has not left the country since that date. On 22 June 1992 the applicant was convicted of the offence of malicious wounding which had occurred on 4 December 1991. The offence involved the use of a large knife or machete to cause a severe wound to the victim and also to threaten a witness to that attack. The applicant was initially sentenced to a period of fifteen months imprisonment with an additional period of five months. On appeal, that sentence was reduced to a period of nine months with an additional period of three months. This conviction rendered the applicant liable to the possibility of deportation under what was then s 55 of the Act. The respondentÕs Department decided not to make a deportation order, but issued a formal warning to the applicant. The applicant was warned that any further conviction would lead to the question of his deportation being reconsidered by the respondent or his delegate and that if the applicant disregarded the warning, that factor would weigh heavily against him. The applicant was released from prison on parole on 2 July 1993 and resumed cohabitation with a Ms Jodie Haffenden. From that union, a son, Ricky, had been born on 21 September 1992. A daughter, Vessie, was born later on 11 April 1994. Relations with Ms Haffenden deteriorated to the extent that she applied for and obtained a domestic violence order from the Campbelltown Local Court on 24 September 1993. In 1994 and 1995 the applicant was convicted for four breaches of that order. In addition to those convictions, the applicant was also convicted on 15 August 1994 for assaulting Ms Haffenden. For that offence he was again sentenced to prison, this time for a term of three months with an additional period of three months. He was released on 11 November 1994. On 28 April 1995 the applicant again assaulted Ms Haffenden for which he was convicted in the Campbelltown Local Court on 9 May 1995. He was sentenced to imprisonment for a term of six months together with an additional period of six months. On the same date he was also sentenced to identical terms, to be served cumulatively, in respect of the fourth breach of the domestic violence order. The sentences were confirmed on appeal with the Judge expressing the view that he would have imposed considerably longer sentences. These sentences also exposed the applicant to possible liability for deportation. The respondentÕs Department considered that course, but decided against it and issued a further warning to the applicant in terms similar to the previous warning. 3 By this time, the applicant had left Ms Haffenden. There had been court proceedings concerning access to the children. The applicantÕs evidence before the Tribunal was that he reached agreement with Ms Haffenden for him to have supervised access to the children once per fortnight. Access was arranged at the shopping centre in Wyong near the township in which Ms Haffenden was then residing with the children and her mother. The applicant was released from prison on 15 November 1996. On 9 October 1997 he was convicted of maliciously destroying or damaging property and fined $500. By February 1997 the applicant had acquired Housing Commission accommodation at Riverwood. At that time he no longer saw his children. In fact the applicant had not seen his children between February 1997 and the time of the hearing before the Tribunal nearly two years later. The applicant used to send Christmas cards to his children and money for Christmas presents, but otherwise had no contact with Ms Haffenden or his children from February 1997 onwards. He contributed nothing to the financial support of either Ms Haffenden or the children. 4 On 26 September 1997 the applicant and another person committed a serious assault on a neighbour at Riverwood. On 26 March 1998 the applicant was convicted of affray and of assault occasioning actual bodily harm. He was sentenced to a term of 12 months imprisonment with an additional 12 months on each charge. The terms were concurrent. On appeal, the applicant was successful in having that sentence reduced to a fixed term of 12 months. This was the third offence (the 1995 offences were treated as one relevant offence) which exposed the applicant to the possibility of a deportation order. On 28 September 1998 a delegate of the respondent, being a Deputy Secretary of the respondentÕs Department, made an order that the applicant be deported. On 8 October 1998 the applicant applied to the Tribunal for review of that decision.