Hui v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-08-16|Before: Carr J, Hill J

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant, Mr Hui, has applied to the Court for an order for review of a decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Deputy President Dr Chappell, affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), that he be deported from Australia. 2 Although the application as filed was in the form of an application of an order for review, the parties have agreed that it be treated as an appeal brought under the Administrative Appeals Tribunal Act 1975 (Cth) against the Tribunal's decision. Such an appeal is an appeal on, that is to say limited to, a question of law. 3 Initially the Tribunal was named as the first respondent to the application. Consistently with the matter being treated as an appeal from the Tribunal's decision, I ordered that the Tribunal be dismissed from the appeal and that the matter proceed in the ordinary way as an appeal brought in the original jurisdiction of the Court by Mr Hui, to which the Minister is the sole respondent. 4 The matter originally came before the Administrative Appeals Tribunal differently constituted to review a decision of a delegate of the Minister made on 28 September 1998 under s 200 of the Migration Act 1958 (Cth) ("the Act") that Mr Hui be deported. An appeal was subsequently brought in this Court by Mr Hui against that decision. Mr Hui was successful in that appeal, which was heard by Carr J. The Tribunal's decision at that time was set aside and the matter remitted to it for further hearing. 5 The substantive ground of that appeal was that the Tribunal had considered the matter by reference to a ministerial policy statement published by the Minister in November 1992. However, on 21 December 1998 a direction had been given under s 499 of the Act of which the Tribunal had apparently been unaware. Since the Tribunal was bound to take into account that ministerial direction and had not, it had erred in law. 6 The matter came again before a Tribunal differently constituted, as I indicated, and reasons for decision of the Tribunal were delivered on 23 March 2000. At the new hearing some parts of the transcript of the former hearing were adduced in evidence and in addition evidence was given by Dr Brent Waters, a forensic child psychiatrist. That evidence was largely directed towards the issue as to what the best interests of the children should be in considering whether or not Mr Hui should be deported. 7 Evidence was also given as I understand it by Mr Hui himself. No evidence was given by Mr Hui's de facto partner, Ms Haffenden who is the mother of Mr Hui's first child Ricky who was born on 21 December 1992. 8 As the Tribunal recorded Mr Hui was born in Western Samoa and later became a citizen of New Zealand. He first came to Australia in October 1988 but stayed only a few days; he returned in June 1990 and has not left the country since that date. Mr Hui has, both in Western Samoa and New Zealand, had a number of convictions. More importantly he has been convicted of a number of offences since arriving in Australia. It is unnecessary to detail those convictions which appear in a chronology which is attachment 1 to the Tribunal's decision. A number of them involve crimes of violence, including against his de facto partner and in breach of domestic violence orders obtained. 9 The conviction which formed the basis of the decision that he be deported arose out of an offence which was committed by him on 26 September 1997 in respect of which he was initially sentenced to a 12 months minimum period with a 12 months additional custodial sentence on each charge. He appealed that sentence on 2 June 1998, the sentences were varied to substitute a term of 12 months with the second 12-month term being served concurrently. 10 As a result of this sentence the delegate accepted the view that Mr Hui be deported and an order was made and served upon Mr Hui in October 1988 to this effect. He then applied to the Tribunal for a review of that order. The underlying basis of an order of deportation of the present kind is to be found in s 201(c) of the Act, in particular the Minister may order deportation of a non-citizen where: "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." 11 As I have already indicated, it was relevant to the Tribunal's decision that the Minister had issued a general direction under s 499 of the Act entitled "Australia's Criminal Deportation Policy - Criminal Deportation under section 200 of the Migration Act 1958: General Direction - Criminal Deportation - No 9". Section 499 authorises the Minister to give written directions to a person or body having functions or powers under the Act, that includes the Tribunal where the directions are about the performance of its functions or the exercise of its powers. As the Tribunal notes, there are two primary considerations referred to in the directive to which a decision-maker is to have due regard. These being in accordance with paragraph 6 of the policy direction: "(a) The expectations of the Australian community; and (b) in all cases involving a parental relationship between a child or children and a potential deportee, the best interests of the child or children." 12 Relevant to the first of these matters are expectations that the community be protected and not put at risk and an expectation that non-citizens who are convicted of crimes abhorrent to the community, be removed from Australia. Matters requiring consideration and indeed, which the Tribunal indeed did consider, involve the serious nature of the crime, the risk of recidivism and the likelihood that deportation of a potential deportee would be likely to prevent or discourage similar offences by other persons. 13 Having considered these matters, the Tribunal turned to consider the interests of Mr Hui's children, of which there were two. The Tribunal recognised, as indeed Mr Hui had himself said in evidence, that for a considerable part of the time in which he had been a father, he had either been in custody (that is to say goal, or immigration detention) or separated from his de facto) and thus had only limited access to the children. The Tribunal noted that the last occasion on which Mr Hui had seen his children, was early in 1997. 14 The report of Dr Waters played a considerable part in the Tribunal's reasons. It was, it appears, tendered without objection. Mr Hui was represented at the proceedings and Dr Waters was cross-examined on the contents of his report. The conclusions he had reached had been arrived at after an interview with the children Dr Waters had at their mother's home in November 1999. Dr Waters had not had the opportunity to interview Mr Hui or observe him in any interaction with the children. 15 Dr Waters' evidence consisted in part of what he had been told by Ms Haffenden, the de facto, about the relationship between Mr Hui and her. He also recorded her views about the effect that deportation would have on the children. The Tribunal found that Dr Waters' report was rather troubling in some aspects. He noted that the children were insecure and disturbed. The benefit of improving the children's attachment to their father through access was outweighed by the potential to disrupt and further disrail the children's development. 16 He expressed the view that ultimately, if the children wished to form a closer relationship with their father, a prudent time for this to occur would be when the children were mature and able to make their own decisions. He accepted that Mr Hui had never been violent or aggressive towards the children and qualified his assessment to the extent that Mr Hui's behaviour might be different if he did not continue drinking. 17 In its conclusions, under the heading, "Best Interests of the Children and Other Factors", the Tribunal noted Mr Hui's strong desire to have access to his children and the obvious point that, if he were to be deported, this would not be likely in the foreseeable future. The Tribunal said: "There is little doubt from information provided and professional views expressed by Dr Waters that Mr Hui's two children, Ricky and Vessie, already live in a dysfunctional family setting. The Tribunal found Dr Waters to be a most credible and convincing witness. He is a highly experienced child psychiatrist with a long-established practice in the field in both public and private settings. The picture that Dr Waters painted was quite bleak of both Ricky and Vessie's past and present experience living with their mother and her partners. Ms Haffenden would seem to have struggled to rear each of the children under adverse circumstances including, while her relationship was maintained with Mr Hui, the constant threat of violence and abuse. Dr Waters also reported that more recently, since Mr Hui's current incarceration and most limited contact with his two children, Ms Haffenden and her family had come to the notice of DOCS and that both Ricky and Vessie were almost certainly viewed as being 'children at risk' ... A limitation of Dr Waters' report, and one that was acknowledged by him, was that he had not been able to observe Mr Hui interacting with either Ricky or Vessie. Such an observation would undoubtedly have added to the value of Dr Waters' report but in his absence the Tribunal can only note that the evidence before it revealed only very limited contact between Mr Hui and his two children over the period since the termination of his relationship with Ms Haffenden. Even during the time that their relationship was intact the nature of Mr Hui's interactions with his children appeared to have been tenuous at best as he was in and out of custody and displaying aggressive and drunken behaviour." 18 Ultimately the Tribunal accepted Dr Waters' opinion that renewed access by Mr Hui would not lead to overall benefit to either of the children and further that, if a closer relationship was to be developed, this should happen at a later time. 19 Weighing up the various matters which the Tribunal had discussed, it concluded: "Having given very careful consideration to the evidence which has been presented to the Tribunal about what is in the best interests of Mr Hui's children, Ricky and Vessie, and to the hardship which Mr Hui and immediate family would suffer if he is to be deported to New Zealand, the Tribunal believes this evidence is insufficient to outweigh the Australian community's legitimate expectation that it will be protected against the risk of a non-citizen like Mr Hui committing further acts of violence. It is never an easy matter to separate two children, both Australian citizens, from one of their parents. Nonetheless, in the present case the weight of the professional evidence suggests that such separation is in the circumstances in the best interests of these children who have already been subjected to substantial trauma and disadvantage. Deportation will also cause hardship to Mr Hui and to his brother, but it remains a factor which is insufficient to preclude the need to protect the Australian community and deter like conduct by other non-citizens." 20 Before me Mr Hui was represented by counsel, not being the counsel who had appeared in the Tribunal. On his behalf it was submitted that the Tribunal had made the following legal errors: 1. That the Tribunal's reasons had proceeded upon the basis that the pre-condition for deportation contained in s 201(c) had been satisfied, whereas it had not. 2. That the Tribunal had taken into account an irrelevant consideration in reaching its conclusions, namely, the dysfunctional nature of the family in which the children were living; 3. That the Tribunal had accepted the report of Dr Waters notwithstanding that Dr Waters had not interviewed the applicant and had interviewed the children in the presence of Mr Hui's de facto partner; 4. That the Tribunal was obliged, in coming to its conclusion, to take into account the Convention on the Rights of the Child but had failed to do so; 5. That the Tribunal had failed to take account of the fact that in at least the two years prior to its decision the applicant had been in custody and was thus unable to maintain contact with his children; 6. That the Tribunal had failed to comply with the Minister's direction, particularly paragraphs 6(a) and 7, by failing to take into account the hardship to the applicant; 7. That the Tribunal had failed to afford procedural fairness in that it had not exercised such power as it had to order further medical or psychiatric reports correcting the defects in Dr Waters' report; 8. That the Tribunal had failed to take into account paragraph 18 of the direction, namely, that the applicant had not, either mentally or physically, abused his children; 9. That the Tribunal had placed too much weight on Dr Waters' report. 21 I shall deal with each of these matters.

The precondition for deportation - section 201(c) 22 Counsel for Mr Hui drew attention to the legislative history of s 201 of the Act in the form in which it was considered in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The precondition for deportation was as s 201 makes clear imprisonment for one year or longer. It was said to be unarguable under such a provision that imprisonment for a term of one year would not fall within that precondition. The actual point of Drake's case was a different one, namely that in calculating whether a term of imprisonment was a term for one year or longer, what was to be taken into account was the sentence itself, not the actual term, that was served. 23 Subsequent versions of the section referred to the relevant sentence as being "to imprisonment for at least one year and also to imprisonment for one year or more". The present section was considered by a Full Court of this Court in Te v the Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264, although the issue in question was a different one. In Te, the applicant had been convicted of an offence carrying with it a sentence of imprisonment for 12 months, three months of which had been suspended. 24 It was held following Drake, or the reason underlying it, that the power to deport in s 200 had been enlivened. There is no suggestion in the judgment that a sentence for a term of 12 months was other than a sentence for a period of not less than one year. It was submitted for the applicant, however, that Te should not be regarded as having decided the matter but rather that, having regard in particular to s 36(1) of the Acts Interpretation Act 1901 (Cth) a sentence of 12 months should be regarded as not being a sentence for a period of not less than one year. 25 In my view, s 36(1) is of no assistance at all in the issue of statutory construction. That subsection, which is concerned with the reckoning of time and which operates subject to a contrary intention, provides: "Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall ... be reckoned exclusive of such day or of the day of such act or event." 26 Section 201(c), in its reference to one year, does not reckon time dating from a given day, act or event. It is concerned with the character of the sentence, not the period on which the sentence may start or for which the sentence may otherwise be reckoned. Nor do I obtain any assistance from general authorities to which I have been referred concerning the construction of time without the assistance of the Acts Interpretation Act. 27 It is no doubt generally accepted that where a statutory provision impinges upon fundamental liberties, and there seems little doubt that a statute dealing with deportation does, in the event of ambiguity, that ambiguity should be resolved in favour of the subject: Drake's case, Minister for Immigration & Multicultural Affairs v Dhingra [2000] FCA 406, particularly paragraphs 26 to 28 in the joint judgment of Burchett and Branson JJ and at paragraphs 37ff in my judgment. 28 The decisions there referred to of in Re Bolton; ex parte Beane (1987) 162 CLR 514 at 520 per Mason, Wilson and Dawson JJ and Beckwith v R (1976) 135 CLR 569 at 576 per Gibbs J while emphasising that courts will not imply provisions with serious consequences for liberty, it also emphasises that the rule that ambiguity in such cases is to be resolved in favour of the subject is one of last resort. 29 However, in my view there is no ambiguity, a sentence of 12 months is a sentence of one year, it is not a sentence less than one year. The consequence is that the statutory pre-condition to the making of a deportation order, as contained in s 201(c), was satisfied.

Irrelevant Consideration - Dysfunctional Family 30 It will have been noted in a passage which I have already referred to that the Tribunal took into account the fact that the family comprising the de facto and the children was dysfunctional. It is said that in so doing, the Tribunal took into account an irrelevant matter. What is or is not a relevant matter falls to be determined by reference to the language of the statute or the subject matter of the discretion, where the statute itself is silent. With respect to the argument I see no reason why it would be inappropriate for the Tribunal, in considering the issue which it was required to consider, namely the interests of the children and the circumstances in which they found themselves as reported by Dr Waters, to refer to dysfunctionality in the family.

Criticism of Dr Waters' failure to interview the applicant 31 It could not be suggested that Dr Waters' report was irrelevant. It was not objected to. No doubt it was subject to the criticism which Dr Waters himself admitted, that he had not had the opportunity to interview Mr Hui. The weight to be given to the lack of an interview was a matter for the Tribunal. The Tribunal was entitled to take Dr Waters' views into account. In so doing it did not err in law.

Failure to take into account the Convention on the Rights of the Child 32 Counsel for Mr Hui relied for this submission upon the decision of Wilcox J in Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550. In that case Wilcox J held that the Tribunal was bound, having regard to the criminal deportation policy then in force, to take into account Australia's obligations under the international Convention on the Rights of the Child, notwithstanding that that convention is not part of Australian municipal law; see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 33 That decision was given prior to the making by the Minister of the direction under s 499 of the Act. The direction itself could not be said to be inconsistent with the international convention, indeed in some ways it may be said to be expegetical of it. A specific failure complained of, namely, the failure to take into account Article 9 clause 3 of the Convention, does not result in the Tribunal erring in law. I should say there is nothing in the way in which the Tribunal approached the issue before it that could be said to be in any way inconsistent with the Convention.

Failure to take into account the fact that Mr Hui was in custody in the two years prior to the Tribunal's decision 34 It will be obvious from the passages which I have earlier cited that the Tribunal was well aware of the fact that Mr Hui had indeed been unable to have ordinary access to his children, not merely in the period in which he may have been in prison but also, in the period of time in which he was in immigration detention. There is nothing in the Tribunal's reasons that in any way suggested that it failed to take this matter into account in reaching the conclusions that it did.

Failure to comply with direction in paragraphs 6(a) and 7 35 In these paragraphs of the direction, the Minister contemplates that there be taken into account, as well as the expectations of the community and the interests of the children, the degrees of hardship which may reasonably be expected to be suffered by the potential deportee and others. Again, it is obvious, from passages which I have cited, the Tribunal did take into account the hardship which would arise if Mr Hui were deported and had no access either to his children or his brother, the latter being an important means of support for him in this country. Again, the Tribunal can not be said to have erred in law.

Denial of procedural fairness 36 It was submitted on Mr Hui's behalf that s 38 of the Administrative Appeals Tribunal Act 1975 (Cth)empowered the Tribunal to require additional medical statements to be provided by another expert to counter the views of Dr Waters. Section 38 would not seem, in my view, to require the Tribunal to obtain evidence itself. It is concerned with ensuring that the particulars required in the s 37 statement to be given to the Tribunal are complete. 37 Whatever scope there may be for a requirement in a particular circumstance that an administrative tribunal investigate some matter not properly explored in evidence before it, the present was not such a case. It was open to Mr Hui, except perhaps because of financial constraint, to obtain such evidence as he wished to about the relationship between his children and himself and to put that before the Tribunal. I have sympathy with an applicant who seeks review of the Tribunal's decision when he or she is in custody and in circumstances where financial constraints render the applicant's ability to prepare for the application difficult but I do not think it can be said that the Tribunal failed to accord natural justice to Mr Hui by not ordering evidence of this kind to be obtained, presumably at its cost. 38 Two comments may be made. First, Mr Hui was represented but at no time did his representative ever ask the Tribunal to do what it is now said the Tribunal should have done. Secondly, while it is undoubtedly true that the Tribunal is required to treat an applicant for merits review before it with procedural fairness, the content of that procedural fairness must depend upon all the circumstances. It is difficult to see, where an applicant is represented and proceedings continue in the Tribunal in accordance with the ordinary procedure of the Tribunal, that it can be said that that applicant has been denied procedural fairness if it fails to do something that it is not asked to do.

Failure to take into account paragraph 18 of the direction 39 Paragraph 18 of the Minister's direction notes that, in the consideration of how the child's best interests will be served, regard should be had to any evidence of physical, sexual or mental abuse of the child by the potential deportee. 40 It is to turn that direction on its head to say that the Tribunal would err in law by failing to note, if it had so failed, that the potential deportee had not physically, sexually or mentally abused his or her children. In fact, in paragraph 62 of the Tribunal's reasons, the Tribunal noted that there had been no evidence that Mr Hui had ever been violent or aggressive towards his children. If there were an obligation arising out of the direction to make a positive finding of no abuse the Tribunal made it and did not err in law.

Other matters 41 The Tribunal's reasons were criticised both in respect of the weight placed on Dr Waters' report and by reference to the fact that it had really not placed sufficient emphasis on Mr Hui's inability to contact his children because he was in detention. Matters of weight ultimately are matters which go to factual findings. The appeal to this Court is an appeal on a question of law. It is for the Tribunal to determine what weight it gives to particular factors and, in this case, what weight it should give to Dr Waters' report. As I have already indicated, the Tribunal did in fact take note that Mr Hui was unable to have contact with his children because of the periods of detention, including immigration detention, which he had suffered. If follows that the applicant has not made out any error of law on the part of the Tribunal and that accordingly the application should be dismissed and the Tribunal's decision affirmed with costs. 42 I direct the applicant pay the Minister's costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate: Dated: 16 August 2000 Counsel for the Applicant: P Lowe

Solicitor for the Respondent: Australian Government Solicitor

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