Le v Minister for Immigration & Multicultural & Indigenous Affairs

Mr Le also had the following convictions recorded against him while imprisoned: Hearing date Offence (Sentence and Compensation) 22/11/2000 Possess drug implement - 14 days off contact visits 12/12/1999 Drugs in urine s 25(4)(A) - 42 days off contact visits (Drugs in urine only) 21/11/1999 Fighting - one day cells 1/6/1998 Threatening behaviour - three days cells 14/10/1996 Drugs in urine s 25(4)(A) - 28 days sup - off contact visits 11/12/1994 Drugs in urine s 25(4)(A) - 42 days sup - off other amenities 4/4/1994 Not comply PO 163/2 or 100F2 - sup - prisoner given reprimand and caution. On 24 July 1991, at the Lidcombe Local Court, Mr Le was convicted of break enter and steal and sentenced to a minimum term of nine months with an additional term of three months. He had been a permanent resident for one year and seven months when he committed this offence (G p18). On 21 March 1992, a delegate of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) decided to warn Mr Le that he might be liable for deportation under s 200 of the Migration Act 1958 ("the Act") (G5). Mr Le was informed of this decision on 10 April 1992 and signed a formal acknowledgement of this advice on the same day (G p21). On 9 February 1994, at Fairfield Local Court, Mr Le was convicted of supply prohibited drug (two counts) and sentenced on each count to a fixed term of imprisonment of 12 months. On 13 April 1994, a delegate of DIMIA wrote to the applicant advising him that the Minister or his delegate was considering cancelling his visa. On 23 September 1994, the applicant was interviewed by a DIMIA officer and made submissions on his behalf as to why his visa should not be cancelled. On 3 November 1994, a delegate of DIMIA notified Mr Le that a decision had been made not to cancel his visa but issuing his second warning (G7). Mr Le acknowledged receipt of the warning on 15 November 1994 (G p85). On 2 May 2000, the Sutherland Local Court convicted Mr Le of steal motor vehicle and sentenced him to a fixed term of imprisonment of 12 months. He appealed against that conviction. On 22 June 2000, the Sydney District Court confirmed the conviction, in lieu sentenced him to 12 months imprisonment with a non-parole period, with conditions, of nine months, his release to be subject to supervision. On 9 October 2002, DIMIA again wrote to the applicant informing him that the Minister or his delegate would be considering whether there were grounds to cancel his visa. On 3 September 2004, an officer of the New South Wales Compliance Cancellations Section of DIMIA informed Mr Le that the Minister was considering cancelling his transitional (permanent) visa because of his substantial criminal record and his past and present conduct and inviting him to comment by 24 September 2004 (G10). She also informed him that in making the decision, the Minister or his delegate would be taking into account his criminal history including convictions and sentences and the previous two warnings issued to him. Mr Le acknowledged receipt of this letter on 17 September 2004 (G11). No submissions were lodged by Mr Le or members of his family. On 24 January 2005, a delegate of the respondent decided to cancel Mr Le's transitional (permanent) visa because of his substantial criminal record and past and present criminal conduct and because of the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) of the Act to cancel his visa (G1 and G10). On 21 February 2005, Mr Le lodged an application for a review of this decision by the tribunal. On 21 February 2005, Mr Le was detained at the Villawood Immigration Detention Centre, New South Wales.'

Relevant law and policy 4 At [13] - [16] the Tribunal sets out the relevant law and policy: 'Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides: For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); … "Substantial criminal record" is defined in s 501(7) to include a person who "has been sentenced to a term of imprisonment of 12 months or more" (c) or "the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more" (d). Section 501(6)(c)(i) states: (c) having regard to either or both of the following: (i) the person's past and present criminal conduct … the person is not of good character; … Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations", but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.'

Issue before the Tribunal 5 The applicant did not pass the character test because of his 'substantial criminal record', having received on 24 July 1991, a minimum term of imprisonment of nine months with an additional term of three months for break enter and steal; on 9 February 1994, a fixed term of imprisonment of twelve months for supply prohibited drug (two counts); and on 2 May 200 a fixed term of imprisonment of twelve months for steal motor vehicle, the conviction being confirmed on 22 June 2000, in lieu sentenced to twelve months imprisonment with a non-parole with conditions of nine months. The issue remaining, therefore, was whether the Tribunal should exercise the discretion under s 501(2) of the Act not to cancel the applicant's visa or affirm the decision of the delegate of the respondent to cancel it.

Grounds of Amended Application 6 The grounds of the applicant's amended application were that the decision of the Tribunal was vitiated by: (1) Apprehended and/or actual bias; (2) Jurisdictional error in that the Tribunal erred in law by taking into account irrelevant considerations; and (3) Jurisdictional error in that it failed to afford the applicant procedural fairness. 7 A large part of the applicant's case on all three grounds is focussed on [40] of the Tribunal's reasons for decision.

Apprehended and/or Actual Bias 8 While the applicant did not abandon reliance on actual bias, the argument on this ground was confined to apprehended bias. The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70 - 71; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 90 - 92; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 343 - 345; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434 - 435 at [27] - [32]; and NADH of 2001 & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264, per Allsop J at [14]. 9 As indicated above, the focus of this ground, as well as the other grounds, was what the Tribunal said at [40]: 'It is now the case that the percentage of the population who were born abroad exerts a significant positive impact on crime rates, and that there is in fact "an important link between immigration, demography and crime" (it may be noted that Aboriginal origin, on the other hand, is not significantly correlated with criminal activity): PM Bodman 'Crime Punishment and Deterrents in Australia; A Further Empirical Investigation' (1997) 24 International Journal of Social Economics pp 884, 895, 897. Failure to give adequate weight to community expectations in cases such as this one could tend to undermine public support for the immigration program.' 10 The applicant's argument is that the Tribunal pre-judged the applicant's application in the light of its expressed views that the crime rate is higher as a result of immigration and that there is a significant correlation between immigration and demography and crime. It is submitted that the Tribunal was unable to consider the individual circumstances of the applicant in the light of the view it had already formed concerning immigrants generally. That the Tribunal failed to consider the applicant's individual risk of recidivism and rehabilitation fairly as a result of its views that the crime rate is greater as a result of immigration. That the Tribunal failed to give proper weight to factors in the applicant's favour in the light of its pre-determined views about immigrants generally and that the Tribunal displayed its bias by not giving the applicant the opportunity to comment on the contents of [40]. 11 As a further example of apprehended bias, the applicant's counsel pointed to the way in which the Tribunal treated a head injury the applicant suffered after being hit by a train at Town Hall Station in 1995. He points to the conclusion of the Tribunal at [25]: 'My conclusion on this point is that while Mr Le probably did suffer a head injury in 1995 causing brain damage and epilepsy, for which medication was prescribed, neither the injury nor the medication was responsible for the continuance of his pattern of regular law-breaking.' 12 He says that is a conclusion which can only be made on the basis of expert evidence and there was none. This matter also related, in the submission of the applicant's counsel, to procedural fairness as well. 13 The applicant's counsel referred to other matters in [43] of the Tribunal's reasons as indicating apprehended bias. First, the Tribunal's finding that the applicant did have relatives in Vietnam and that there was nothing in the evidence suggesting there was any obstacle to making enquiries with a view to re-establishing contact with them. Second, the Tribunal's finding towards the end of [43], that the applicant's basic English skills would also help him find employment and Vietnam's economy is reportedly growing at present involved a glossing over of his prospects for employment in Vietnam and was not supported by any evidence.

Irrelevant Considerations 14 Again, the extract from [40] of the Tribunal's reasons was relied on as involving error on the part of the Tribunal by taking into account irrelevant considerations. These statements in [40], it was submitted, were not a matter referred to in s 501 nor in direction 21 of the Minister. Indeed, it is irrelevant to the applicant's application what the statistics show in relation to crime rates and immigration generally.

Procedural Fairness 15 Again the focus of this ground are the matters in [40] of the Tribunal's reasons, it being said that the Tribunal failed to put to the applicant that it intended to take such matters, namely, that the crime rate is now higher because of immigration and that there is an important link between immigration, demography and crime, into account and that the applicant was given no opportunity to answer those statements. I was referred to Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1, in particular in the judgment of Gleeson CJ at [34] - [37] and his Honour's comment at [37]: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' 16 There is a relationship between this ground and the first ground - actual or apprehended bias. The decisions of the High Court in Re Refugee Review Tribunal; Ex parte H at [5]; Re Refugee Review Tribunal; Ex parte AALA 204 CLR 82, and Hot Holdings Pty Ltd v Creasy (2002) 193 ALR 90, hold that both actual and a reasonable apprehension of bias are aspects of procedural unfairness. One of the incidents of the duty to act fairly, in exercising a statutory right that affects rights or interests, is 'the absence of the actuality or the appearance of disqualifying bias' (per Gleeson CJ, Hot Holdings at [21] citing Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367). See too NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 at [5].

Reasoning 17 The applicant's reliance on what the Tribunal said at [40] of its reasons as the foundation of his grounds of bias, apprehended or actual, the taking into account of irrelevant considerations and denial of procedural fairness is taken out of context and cannot, for that reason, sustain an argument on any of these grounds. 18 The statement in question is extracted at [9] supra. Read in the context of [38] - [40], those words are given no weight by the Tribunal in its application of the second primary consideration namely, that the community expects non-citizens to obey Australian laws while in Australia, let alone the other relevant primary consideration and the secondary considerations the Tribunal was required to take into account. 19 The Tribunal's application of the second primary consideration to the circumstances of the applicant appears at [39] where the Tribunal says: 'The applicant has engaged in continuous criminal conduct since 1991 up until July 2004. He continued to break the law even after being given his first deportation warning on 10 April 1992 and his second deportation warning on 15 November 1994. In my view the Australian community would expect that a person who comes to Australia, starts to commits serious offences less than two years after his arrival, and builds up over an unbroken thirteen-year period a twenty page criminal record, is sentenced to more than thirty terms of imprisonment and disregards severe warnings about the risk of visa cancellation should he re-offend, has forfeited any right to remain in Australia.' They are the facts and circumstances upon which the Tribunal relied for reaching the conclusion it did on the second primary consideration. 20 In my opinion, the statement in question was relied on by the Tribunal not as part of the application of the second primary consideration or as part of the application of any other consideration, primary or secondary, but to emphasise, as is done in the last sentence of [40], why the expectations of the Australian community should be a primary consideration - because failure to give weight to community expectations in cases such as the one before it could tend to undermine public support for the immigration program. 21 The applicant also relied on other parts of the Tribunal's reasons and the transcript of the proceedings below in support of his ground of apprehended bias. His counsel referred to the brain damage the applicant suffered as a result of a head injury the applicant incurred on being hit by at train at Town Hall Station in 1995 - the references to this incident are at the bottom of p 37 and on p 39 of the transcript and at [25] of the Tribunal's reasons, where it said: 'There appears to be no significant change in the pattern [a long-standing pattern of law-breaking] after 1995, the year of the alleged head injury. My conclusion on this point is that while Mr Le probably did suffer a head injury in 1995 causing brain damage and epilepsy, for which medication was prescribed, neither the injury nor the medication was responsible for the continuance of his pattern of regular law-breaking.' It is said that such a conclusion requires expert evidence and the Tribunal was not qualified to express such a conclusion in the absence of such expert evidence. 22 It may well be that such a conclusion is a matter for expert evidence; but in the context of the Tribunal's decision making process it fell to the applicant to adduce such evidence and he did not do so. There is no 'no evidence' ground before the Court; only apprehended bias. When one reads what the Tribunal said at [25] in the context of [21] - [25] of the Tribunal's reasons, and by reference to the transcript of proceedings, I agree with the respondent's submission that no fair-minded and informed person could possibly think the Tribunal was unfair or had closed its mind. 23 Finally, under the ground of apprehended bias, the applicant's counsel referred to [43] of the Tribunal's reasons by recourse to two matters - the way the Tribunal dealt with the evidence of the applicant's family in Vietnam: What is said at [43] cannot stand in the face of the applicant's several denials of having relatives in Vietnam; and the way the Tribunal 'glossed over' his prospects for employment in Vietnam. 24 In my opinion, the way in which the Tribunal deals with both these matters in no way suggests it gave rise, or would give rise, to an apprehension in the mind of a fair-minded and informed person that the Tribunal was bringing a closed mind to its task, one that had already been made up. 25 In any event, I was referred to pp 13 and 14 of the transcript below as to what the applicant originally indicated in a questionnaire as to his relatives living in Vietnam, to support the particular passage in [43] of the Tribunal's reasons and, in my view, those pages do support that passage. 26 In the result, the ground of apprehended bias has not been made out. 27 My finding at [20] is sufficient to dispose of the ground that the statement in [40] of the Tribunal's reasons involves the taking into account of irrelevant considerations. In no way do they infect the Tribunal's reasoning process on the first primary consideration - protection of the Australian community and the three factors there involved - the seriousness and nature of the conduct, the risk of recidivism and general deterrence - as exemplified in [35 ] - [37] of the Tribunal's reasons. 28 I have already indicated that the statement in question does not infect the Tribunal's reasoning process on the secondary primary consideration - expectations of the Australian community. Finally, there is nothing in [42] - [44] of the Tribunal's reasons to indicate that the statement in [40] has infected the Tribunal's reasoning process in relation to the secondary considerations to which the Tribunal was required to have regard. 29 It follows, in my view, that jurisdictional error, based on taking into account of irrelevant considerations, has not been made out. 30 Because of my findings in relation to apprehended bias, there has been no denial of procedural fairness on account of apprehended bias. The applicant's counsel abandoned reliance on par 9 of his written submissions - 'In further support of the reasonable fear of prejudice, it can be seen that the Tribunal informed the applicant that he could have his say after the respondent's representative finished his submissions, but failed to give him that opportunity.' conceding the contention of the respondent's counsel that the transcript on which this submission is based he been the product of the cassette tapes being out of order. 31 The same applies to par 17 of the applicant's written submissions: 'The applicant had a legitimate expectation that he would be afforded procedural fairness generally and in particular that he would be permitted to speak after the respondent's representative had concluded. He was informed that he would have that right by the Tribunal, but was then denied it.' For the same reason, it too must be regarded as having been abandoned. 32 This leaves the particulars referred to in pars (a) and (b) of the ground of denial of procedural fairness in the applicant's further amended application - that the Tribunal failed to put to the applicant that it intended to take into account the matters in the statement in [40] of the Tribunal's reasons and give the applicant the opportunity to answer them. But this is answered by my findings at [20] and [28]. In no way did the Tribunal's statement at [40] infect the Tribunal's reasoning process on the apprehended/actual bias ground or on the taking into account of irrelevant considerations ground. 33 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 1 November 2005 Counsel for the Applicant: Mr M Campbell (Pro Bono)