Lau v Minister for Immigration & Multicultural Affairs

THE COURT: 1 The appellant appeals from a decision of the Administrative Appeals Tribunal, constituted by a Deputy President, affirming a decision of the delegate of the Minister made on 28 September 1998, that the appellant be deported from Australia pursuant to s 200 of the Migration Act 1958 (Cth). The appeal is limited to questions of law: s 44 Administrative Appeals Tribunal Act 1975 (Cth). Background 2 The appellant came to Australia in 1984 on a tourist visa. His immediate family, but not his father, had travelled to Australia at an earlier time. He was then aged ten years and eight months. He received his schooling in Australia from that time. On 25 October 1995, in the company of others, he committed the offence of "aggravated break, enter and commit felony", for which he was convicted in the District Court at Sydney on 27 September 1996 and sentenced to a minimum term of three years and four months imprisonment and an additional term of two years. Other offences were committed by him prior to trial, and whilst he was on bail, but it was this offence which founded the order for deportation. At the time of the commission of the offence the appellant was not an Australian citizen.

The Tribunal Decision 3 The offence founding the deportation order was one to which the description "home invasion" has been applied. It is clear that the Tribunal was much influenced by the nature of the offence. Indeed, the two factors which it said ultimately weighed in favour of affirming the order for deportation were the gravity of the offence and the serious risk of recidivism. The Tribunal described the offence as evidencing "a singular cowardice, brutality and callousness …". The appellant, his brother and another acquaintance decided upon an armed robbery at the home of a friend of his brother's. Entry was obtained, by ruse by the appellant and the acquaintance. When entry was obtained, they tied up and blindfolded the 19 year old son of the household who was there alone, and the appellant menaced him with a pistol which he had in his possession. The reference to the pistol also assumes some importance in the Tribunal's assessment of the appellant's credibility, which in turn influenced its view of the genuineness of his remorse. The story given to the Tribunal was that the appellant had been given the pistol at school. He then retained it for three years. This was wholly different from a story of recent acquisition which had been given to the police. The inconsistencies were put to the appellant, but not explained satisfactorily, and the Tribunal concluded that the appellant had deliberately misled it in the hope of a more favourable gloss on the history of the weapon. 4 Whilst on bail for the abovementioned offence the appellant, as a member of a gang, offended on four more occasions by preying upon male Asian students and obtaining money from them by threats. In this respect, the Tribunal noted the sentencing Judge's observation that the appellant was "at least a major player" and that "one has the impression from your conduct that you were certainly at that stage by nature both vicious and manipulative". This also assumes some relevance with respect to the sentencing Judge's view of the appellant's expressions of contrition. 5 In addition to the view the Tribunal took of the appellant's credit-worthiness, it is clear that the view it formed of his lack of empathy with his victims was influential in its assessment of the likelihood of his re-offending. The consultant psychologist's pre-sentence report had described him as having "a generally disturbed personality disorder". The Tribunal said that one aspect of this disorder was that he showed no genuine empathy with the trauma he inflicted on his victims. It observed the appellant claimed "to this day that he 'didn't hurt anyone'", and pointed out that on the appeal which had been brought against his sentence (but later withdrawn) the appellant had said that he had merely tied the young man up. The Tribunal concluded: "In other words, he does not appreciate to this day that threatening someone with a pistol, tying him up with tape and blindfolding him constitutes 'hurt', as does demanding money with menaces with an accomplice holding a knife." 6 The Tribunal then referred to passages from the transcript of a conversation between the Deputy President and the appellant: "THE D. PRESIDENT: Would the threat and so on with a gun and tying him up [not] create some hurt. -- Yes THE D. PRESIDENT: So when it is put to you, you said you didn't hurt anyone. That is really not quite accurate, is it? --- Yes, that's right. I tried not to hurt anybody. I hurt him, yes." 7 The Tribunal went on to reject the appellant's protestations of feeling guilt for his past violent and criminal behaviour. After observing that it was not for the Tribunal to determine what was the cause of the appellant's personality disorder, it was said: "… it is sufficient for my purposes that I am satisfied that the applicant remains a sociopath who continues to pose a threat to the Australian community if released, a feature which is unaffected by the applicant's good behaviour whilst in gaol and the bundle of certificates, certifying the completion of a number of courses, none of which seem relevant to behavioural changes." This passage and in particular the reference to the term "sociopath" assumes some importance on the appeal. The Tribunal's impression of the appellant, the reasons disclose, was confirmed by reference to his discussions with members of his family, which showed that he had down-played his part in the crimes. Taking into account the matters referred to above, the appellant's lack of full appreciation of the horrendous nature of the crimes and of the effect on his victims, combined with the fact that the crimes revealed him to be weak-willed and easily led, the Tribunal concluded that there was a high risk of his re-offending. 8 The Tribunal then turned to the General Direction under the hand of the Minister and dated 21 December 1998 with respect to Australia's Criminal Deportation Policy (see s 499 Migration Act). The Tribunal identified as a "primary consideration" the expectation of the Australian community to be protected from, and have removed, unacceptable levels of risk of crime. Here, the Tribunal noted, there were crimes of violence involved where the victims were young and vulnerable, the attacks were cowardly, they involved violence, the use of a gun and took place in the context of a gang. It stated at that point: "Having regard to the seriousness and nature of the crimes involved, the lack of genuine remorse, the risk of recidivism and the likelihood that deportation of this man may prevent or discourage similar offences by other persons, the scales tip heavily in favour of deportation." 9 In view of the contentions advanced on the appeal, it is necessary to set out the paragraphs which followed: "Even if I were to [dis]regard the risk of recidivism - which I emphatically do not - there is yet another reason in favour of deportation. The Australian community expects that non-citizen perpetrators of crimes abhorrent to the community should be not be allowed to remain in the community. This is succinctly set out in para 15 of the General Direction of Australia's Deportation Policy, where it is stated: '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." (my underlining) Having said this, there are weighty reasons against deportation. In the first place, there can be little doubt that the applicant, if deported to Hong Kong, will suffer considerable hardship. Although he is fluent in Cantonese, he has no cultural ties with Hong Kong, nor any family members who can keep an eye on him. One must, therefore, have genuine fears for his future if deported. Again, he has close family ties with his mother and step-sister and removing him from that milieu will undoubtedly cause considerable hardship to the mother and continuing tension between her and her step-son-in-law and, perhaps to a lesser between husband and wife, the girl she raised from babyhood and who regards her as her mother. Mr Cheung points out, correctly, that disintegration of a close family is an important consideration which should be given great weight, and I have given anxious thoughts to this factor and the likely impact deportation will have on the family dynamics. Again, I am acutely conscious that this young man arrived in this country aged ten years, which is a factor in his favour, the presumption being that the person has developed significant ties with the Australian community. Applied to this case, I have not been persuaded that this young man has integrated well into the Australian community. One need only to point to the admitted fact that he singles out people of Asian descent to prey upon in order to rob them. Where the crimes committed are so offensive to community standards, the fact that the offender has spent his adolescence in this country cannot save him from deportation. This is well recognised in Government policy, which notes: "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." Again, it may be said that the applicant was unaware that he may face deportation as a result of the home invasion before committing the extortion offences (which were committed before he was sentenced for the deportable offence, hence no warning could have been given). On the other hand, on the whole of the evidence, I am not persuaded that such awareness would have deterred him from re-offending. What ultimately tilts the scales against the applicant in this case is the gravity of the offences he committed, coupled with what I regard as a serious risk of recidivism. In the result, whilst mindful that deportation will undoubtedly cause great anxiety and tensions within his family in Australia, but no matter how heavily one weighs this factor on the other side of the scales, it cannot tilt the balance in favour of setting the deportation order aside."