Naisauvou v Minister for Immigration & Multicultural Affairs [1999] FCA 86 | Case summary

Introduction 1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") against a decision of a Deputy President of the Administrative Appeals Tribunal ("the Tribunal") of 18 September 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") ordering the deportation of Mr Valami Naisauvou ("the applicant") under s 200 of the Migration Act 1958. Background 2 The following is the background against which the deportation order was made. In describing it I have generally drawn from the reasons for decision of the Tribunal. 3 The applicant was born in Fiji in 1975 and is a citizen of that country. He arrived in Australia on a visitor's visa in December 1981 and was granted permanent resident status in August 1991. The applicant's parents both reside in Sydney though he has had no contact with his father for some time and limited contact with his mother. The majority of the applicant's childhood was spent living with his maternal grandparents, with whom he now resides. The applicant is the father of a five year old son, Voniani, who is also living with and has been legally adopted by the applicant's grandparents. The child's mother left the child with the applicant's grandparents when he was one and it appears that there is no meaningful contact between mother and son. The applicant's contact with his son has been limited given that he was in prison between late 1994 and late 1997. However they have resided together with the grandparents during his periods of parole. 4 The applicant left school after completing year 10 and since then has worked as a casual labourer or has been in receipt of unemployment benefits. The applicant has a substantial criminal record involving both drug offences and assault with intent to rob. His early convictions involved relatively minor incidents of theft, assault and drug use. However his later offences, including the deportable offences, were more serious and included robbery with striking, larceny of a motor vehicle and robbery whilst armed. The first deportable offence took place on the evening of 16 September 1994 when the applicant and others, who had all been drinking heavily, were involved in the assault of a taxi driver. During the incident the applicant seized the taxi driver by the throat, punched him, and stole money. The applicant gave evidence before the Tribunal denying that he was the member of the group that assaulted the taxi driver and said that he took the blame on behalf of his friends. The second deportable offence, involving similar circumstances, took place shortly after the applicant had been granted bail for the first offence. However on this occasion the taxi driver was violently assaulted and his taxi was stolen by the applicant. For these offences the applicant was sentenced to a minimum non-parole period of three years with an additional term of three years. The applicant also committed a number of offences while in prison, mainly associated with drugs. A 1995 prison assessment of the applicant described him as being apathetic towards work and gaol procedures, having a low participation in gaol programs, and displaying low self esteem and self motivation.

For the sake of completeness, I should point out that on the day of the hearing, the police arrived in the hearing room to re-arrest the applicant for breaches of parole, his whereabouts first becoming known to the police (acting on a warrant) on learning of his appeal against deportation being heard that day. The applicant and his uncle having agreed to the proceedings being continued in his absence, I allowed the applicant to be handed over to the police to be dealt with according to law. I am advised that the effect of his apprehension is that he will be required to serve the rest of his sentence in detention (some two years and four months). (Emphasis added) 12 The Tribunal then detailed the evidence of the applicant's supporting witnesses. The applicant's girlfriend gave evidence that she was confident the applicant would not re-offend, and that she wished to spend the rest of her life with him and "start a family with him". She stated that she would follow the applicant to Fiji if deported. The Tribunal said it was particularly impressed with the applicant's grandparents, whom it described as "an upright and godfearing couple". The Tribunal noted that neither of the grandparents were in good health, and it was not known what would become of the applicant's son when they were no longer able to look after him. The grandmother had expressed a hope that the church and the strongly-knit Fijian community would help in rehabilitating the applicant. The Tribunal said that it did not believe that her hopes had "any realistic chance of fulfilment". The Tribunal noted the grandfather had offered to teach the applicant to serve God honestly and truthfully. The Tribunal said that "nothing short of divine intervention is likely to produce a change in this man" and that the grandparents' pleas to the applicant to come to church had been "met with flagrant breaches of parole". 13 The applicant's son gave brief evidence which the Tribunal viewed as doing "nothing to assist his father's case". The Tribunal observed that contact between the applicant and the son seemed less than intimate. However it accepted that in recent times the applicant had spent more time in the home than previously and did share some activities with his son. In putting the relationship between the applicant and his son in the balance of factors for and against deportation, the Tribunal made the following comments: Mindful that a young Australian child must always constitute a primary consideration when deporting a parent, I have not been persuaded on the evidence that the contact between father and son in this case is either intimate or even desirable, contact which, in any event, will now be postponed by some years as a result of the revocation of the father's parole. As role models go, I can think of nothing worse for the future of this lad than to be in constant intimate contact with a man who has an alcohol problem, apparently intractable, with no intention of seeking help, has a violent disposition with no regard for the person or property of others, and has shown neither signs of genuine remorse nor convincing evidence of reformation. … On balance the interests of this child, still young enough not to have come under the influence of his father's amoral ways, is far better served to remain in the care of his great-grandparents than if he were to be looked after by the father and his girlfriend. (Emphasis added) 14 The Tribunal concluded that: … anything is better for the future of Voniani than intimate contact with a father who is the offspring of dysfunctional parents and shows every sign of having "inherited" this dysfunctional gene. 15 I now turn to consider the issues raised in this appeal. Denial of procedural fairness 16 The first issue was whether the Tribunal denied procedural fairness to the applicant by meeting in his absence with the police, permitting his arrest outside the hearing room by those police, and continuing the hearing in his absence. Counsel for the applicant submitted that it was apparent to the Tribunal that the applicant's representative, Mr Leone, was not a lawyer and was not in a position to advise the applicant of the possibility that he may have been able to remain in the hearing room until the proceedings were completed. Moreover, given the time at which the applicant was arrested and detained, it would have been open to the Tribunal to have adjourned the proceedings so that the applicant could be present at a later time. At the very least, it was submitted, it was necessary in the circumstances to ensure that the applicant had given his informed consent before the Tribunal proceeded with the review in his absence. Although the Tribunal apparently acted with the agreement or at least acquiescence of the applicant's uncle, it did not act with the agreement of the applicant. It was submitted that by continuing the hearing in his absence, the Tribunal denied the applicant the opportunity to give instructions to Mr Leone as to what questions should be asked of his witnesses and to disabuse the Tribunal of its incorrect understanding of the discretionary legislative framework governing the grant and revocation of his parole. 17 Counsel for the Minister submitted that all discussions in relation to the arrest at hearing took place in the presence and with the agreement of the applicant's representative. It was made clear prior to the applicant being taken away that there were no witnesses to be called on behalf of the Minister, and thus no witnesses who would make any allegations against the applicant to which he might need an opportunity to reply. Counsel referred to the legislative framework in which such hearings are conducted. Section 32 of the AAT Act enables a party to appear in person or be represented by some other person. Section 39(1) provides that the AAT shall ensure that every party to a proceeding before it is given a reasonable opportunity to present his or her case. It was submitted that the AAT did not breach the rules of natural justice or s 39(1) of the AAT Act in making orderly arrangements for the applicant's arrest pursuant to the warrant after the completion of his evidence. 18 Section 32 provides: At the hearing of a proceeding before the Tribunal, a party to the proceeding may appear in person or may be represented by some other person. 19 Section 39 provides: Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 20 Plainly s 32 confers a right on a party to conduct their case themselves or to have another person conduct it on their behalf. However the existence of that right says nothing about whether a represented party is entitled to attend or remain at a hearing of the Tribunal even if represented. That issue was considered by Brennan J in Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 though in the context of the exercise of the power conferred on the Tribunal by s 35 of the AAT Act to exclude, inter alia, a party from the hearing. Then sitting as the Tribunal, Brennan J said at 508: Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him - a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. 21 A subsequent appeal against the decision of Brennan J did not elicit any criticism of these observations even though the consequences of exclusion of the applicant (namely more circumspect scrutiny of material provided in the absence of the applicant) was an issue in that appeal: see (1980) 31 ALR 666 and see also (1981) 149 CLR 139. As to the right of a party to be present during administrative proceedings more generally see National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, and Re an application under the Criminal Justice Act (1994) 2 QdR 581. This is not a case of an absence of the type to which s 41(1)(b) is directed, which enables the Tribunal to proceed in the absence of an applicant. That provision concerns an applicant who is notified of a hearing and elects not to attend. 22 In the present case the applicant was not denied the opportunity to remain at the hearing, at least directly, by any act of the Tribunal. At the highest for the applicant, the Tribunal's conduct involved the facilitation of the applicant's arrest by proposing a course that would result in his removal from the hearing before it concluded and securing agreement of the police and Mr Leone to that course. The question that arises is whether the applicant was, in the result, denied a reasonable opportunity to present his case. A consideration of that question must involve a consideration of the point at which the proceedings had reached when, by the course proposed by the Tribunal, the applicant was arrested and detained. 23 The applicant had, at that point, given his evidence. The representative of the Minister had indicated he did not propose to call evidence. Thereafter four witnesses were called on the applicant's behalf namely, his girlfriend, two of his grandparents and his son. All but his son were cross-examined. His girlfriend was re-examined by Mr Leone, though the two grandparents were not. Submissions were made on behalf of both parties when the oral evidence concluded. The absence of the applicant from the hearing precluded any instructions being given to Mr Leone about questions to ask in chief or in re-examination though plainly only in relation to witnesses called on the applicant's behalf. It also precluded any instructions being given as to what submissions should be made and, in particular, what submissions might be made in reply to those made by the Minister's representative. Mr Leone addressed first but was invited to respond to the submissions made on behalf of the Minister. The Minister's submissions were made in the context of the Tribunal having expressed, at the commencement of them, fairly strong and unqualified views about the likelihood of the applicant reoffending and the issues, as the Tribunal perceived them, being the effect of deportation on the grandparents and the son and the alien position of the applicant in Fiji. The Minister's submissions addressed these issues. 24 It is clear from the evidence in this appeal that the police wished to arrest the applicant as soon as they could. It is equally clear that the Tribunal adopted the position that any right the police may have had to arrest the applicant was not unqualified in the sense that the Tribunal had a part to play in determining the manner in which, and more importantly, the time at which the arrest was effected. It appears the arrest of the applicant was effected under s 36 of the Sentencing Act 1989 (NSW) which empowered the Parole Board to issue a warrant authorizing a member of the police force to arrest a person and return the person to a prison. While the Tribunal has a power to compel the attendance of witnesses at a hearing: see s 40(1A) of the Act, it appears to have no power to compel the attendance of a party who is incarcerated: see Re Ward and The Secretary of Department of Industry and Commerce (1983) 8 ALD 324. 25 However a party to litigation may, in certain circumstances, be immune from arrest in the sense that the arrest of the person could constitute a contempt of court. Section 63(d) of the AAT Act provides that a person shall not do any act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court. The arrest of a person in or in the precincts of a court can constitute contempt if it would interfere with the administration of justice: see Re O'Sullivan; Ex parte O'Sullivan v The Commonwealth Bank of Australia (1995) 57 FCR 145 at 147 and R v James William Duff, unreported, 17 September 1998, Supreme Court of New South Wales, Court of Criminal Appeal. This constraint on the power of arrest has been referred to as a privilege from arrest though it is a privilege of the Court: see In Re Hunt (1959) 2 QB 69. By parity of reasoning and having regard to the terms of s 63(d) it may be treated as a privilege of the Tribunal. 26 In my opinion it would have been open to the Tribunal to have indicated to the police that it was necessary for the applicant to remain at the hearing until the hearing had concluded. There would have been no reason, in principle, why the officers could not have been asked to return to arrest the applicant at the conclusion of the hearing or, if they were concerned about him absconding, asked to effect the arrest immediately but on the basis that the removal of the applicant from the hearing room be deferred until the conclusion of the hearing. Had this course been followed the opportunity spoken of by Brennan J in Pochi would have been afforded the applicant and he would have been given a fair hearing. 27 Because the Tribunal did not adopt this course, the applicant was not present when witnesses called on his behalf were cross-examined and when the opportunity arose for their re-examination. Nor was he present when his unqualified representative was confronted with strongly expressed views of the Tribunal concerning the prospect of the applicant re-offending about which the representative of the Minister then made submissions. It is possible that the applicant would have done either very little or nothing by way of instructing Mr Leone in the further conduct of his case had he remained. However the fact that the best opportunity might not have been taken advantage of does not conclude the inqury. As Deane J said in Kioa v West (1985) 159 CLR 550 at 632 in relation to a denial of an opportunity to be heard before a deportation order was made: Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious. 28 The critical issue is whether the applicant was deprived of the opportunity of doing so in circumstances where he might have desired to do so. He was and this, in my opinion, constituted a denial of procedural fairness. This conclusion is sufficient to dispose of the appeal. I should, however, say something about each of the other grounds raised by the applicant. Reasonable apprehension of bias 29 The second issue raised in this appeal concerns the conduct of the Tribunal. Counsel for the applicant submitted that the Tribunal was ostensibly biased. This submission was made by reference to the language used by the Tribunal to describe the applicant and the fact that the Tribunal took steps to facilitate the arrest and removal of the applicant and the continuation of the proceedings in his absence. In relation to the Tribunal's use of language, it was submitted that the Tribunal had vilified the applicant, as there was no basis on the evidence to justify the use of descriptions such as "surly", "unamenable to discipline", "bad and irremediably so", "amoral", or the observations that the applicant had "an intractable alcohol problem" or a "dysfunctional gene". It was submitted that such language has no place in administrative proceedings and would lead fair minded people to reasonably apprehend or suspect that the Tribunal has prejudged the applicant's case in a way that gave rise to an apprehension of bias. 30 Counsel for the Minister submitted that no apprehension of bias arose in relation to the conduct of the Tribunal concerning the arrest of the applicant as the conference with the police that led to the arrest occurred in the presence of Mr Leone. In relation to the alleged "vilification" of the applicant it was submitted that the descriptions of the applicant reflected the ultimate factual conclusions reached by the Tribunal. They were observations involving final judgment, not prejudgment. Counsel submitted that each observation of the Tribunal complained of by the applicant had some basis in the material before the Tribunal, the applicant's demeanour as a witness, and other evidence said on his behalf, though it was conceded that the language used was colourful. 31 In my opinion, the conduct of the Tribunal in relation to the arrest of the applicant does not provide any basis for concluding that the Tribunal was ostensibly biased. While the course it took was, for reasons just given, an inappropriate one, it was not taken for the purpose of curtailing the applicant's right to a fair hearing nor was it the manifestation of a disposition against the applicant. 32 As to the Tribunal's reasons for decision, I do not accept that views expressed in such reasons should necessarily be approached on the footing that they involve final judgment. The way in which reasons are expressed can found a conclusion that the decision maker was ostensibly biased: see Vakauta v Kelly (1989) 167 CLR 568 at 573 per Brennan, Deane and Gaudron JJ, at 579 per Dawson J and at 588 per Toohey J. In the present case the language used by the Tribunal was forceful and, in so far as it spoke of a "dysfunctional gene" quite inapt. However it is not language which justifies, in my opinion, a conclusion that the Tribunal had a preconception about the applicant that coloured its thinking from the outset and inappropriately influenced the conclusions it reached. 33 However I should note that I had cause to make the following observations about the language used in reasons for decision of the Tribunal, constituted by the same member, in another criminal deportation matter concerning a Vietnamese national, Dang v Minister for Immigration and Multicultural Affairs, [1999] FCA 38: A court must accord some real latitude to a decision maker concerning the way their reasons for decision are expressed. However that does not provide a licence for a decision maker to use extravagant, offensive or unnecessarily colourful language. In the present case some of the language used by the Tribunal might be characterized in this way and may well have been seen by the applicant and his family as coloured. The decision of the Tribunal plainly had profound implications for the applicant and his family. Indeed the Tribunal acknowledged as much. The preparedness of an unsuccessful applicant and others with an interest in the application to accept the correctness of a decision may well be diminished by the use of inappropriate language. In the present case the Tribunal spoke of "gangsters" and "mobsters" though, it must be acknowledged, it accepted that the term "gangster" might not be an apt description of the applicant. Nonetheless those terms were used in the context of the Tribunal describing the crime of "home invasion" as "an introduced crime". On one view of this expression, the Tribunal was implying that it is a crime resulting directly from the recent immigration of peoples of different ethnic or cultural backgrounds and probably from Asia. Indeed the Tribunal spoke of the applicant having access to information relating to his local "Vietnamese Mafia" " which apparently was a term not used by any witness or advocate in the proceedings. Later, in the context of discussing Ms Robilliard's evidence that the applicant does not have an atypical history for a young immigrant Vietnamese male, the Tribunal said: It [the evidence of the psychologist] does little to reassure me that immigrants from that background "grow out of" their criminal instincts with advancing years. Again this passage, on one view, may be thought to imply that Vietnamese males have some inherent predisposition to commit crime. I accept as entirely reasonable the view the Tribunal took of the abhorrent nature of the crime in which the applicant participated on 20 December 1988. However the language to which I have just referred has the tendency to create the impression that the Tribunal's decision was coloured by a view about Vietnamese or at least young Vietnamese males. If it has created that impression in the eyes of the applicant or his family, it is unfortunate that the Tribunal deployed the language it did. 34 Situations should not arise where observations of this type need to be made. Error of law in relation to the effect of revocation of parole 35 The third issue raised in this appeal was whether the Tribunal erred in law in proceeding on the basis that the revocation of the applicant's parole would mean that he would spend the remainder of his sentence in custody. Both in fact and law the Tribunal's understanding about the effect of the revocation was not correct. Four days' prior to the publication of the Tribunal's reasons the Parole Board directed that the applicant be re-released on parole. The Tribunal was not made aware of this development. Counsel for the applicant sought to prove, by reading an affidavit in these proceedings, what decision had in fact been made by the Board. Strictly such evidence is probably inadmissible and should be rejected but, for reasons which will be apparent shortly, the fact that the applicant was again released on parole has no material bearing on the challenge made to the Tribunal's decision. It was submitted that the Tribunal's misunderstanding about the further incarceration of the applicant had a material effect on the Tribunal's approach, particularly in relation to its consideration of the quality of the contact between the applicant and his son and its consideration of the applicant's prospects of rehabilitation. 36 Counsel for the Minister accepted that the Tribunal misunderstood the legal effect of the revocation of the parole. It was common ground that, under the Sentencing Act 1989 (NSW), once parole is revoked the revocation can be reconsidered and rescinded: see ss 34, 38, 39 and 40 of that Act. It was submitted, however, that the Tribunal's understanding of the effect of revocation was irrelevant to its ultimate conclusion about the desirability of contact between the applicant and his son. It was submitted that the Tribunal reached the conclusion that the contact between father and son was not in the latter's best interests and then noted that any such contact "will now be postponed by some years as a result of a revocation of the father's parole". Counsel also noted that there was no evidence to suggest that the Minister was aware of the decision of the parole board of 14 September 1998, and the applicant appeared to make no effort to bring this fact to the attention of the Tribunal. In any event, it was submitted, the applicant's re-release on parole had no relevance to the Tribunal's ultimate decision. 37 In its reasons the only material reference the Tribunal made to the effect of the revocation of the applicant's parole was that there would be no contact between the applicant and his son for the period of his further imprisonment. However this was said by the Tribunal in the context of expressing the view that such contact was not desirable. Thus, the further imprisonment would simply bring about a situation which, if the applicant remained in Australia, was one the Tribunal favoured. This was not a case where potential lack of contact between the parent and child was viewed as a factor counting against the applicant and favouring deportation. On the approach of the Tribunal its error concerning the effect of the revocation of the applicant's parole under the Sentencing Act 1989 (NSW) had no material effect on its decision. Relevant and irrelevant considerations and "no evidence" 38 The fifth issue raised in the appeal was whether the Tribunal erred in failing to take into account relevant considerations and had erred in taking into account irrelevant matters. Counsel for the applicant submitted that the Tribunal's findings concerning the applicant's minimal capacity for reform and rehabilitation amounted to a constructive failure by the Tribunal to exercise its jurisdiction. It was submitted that there was a body of evidence before the Tribunal which suggested that the applicant had taken significant steps towards reform. The applicant had done courses while in custody, including the school certificate; he had exhibited some insight into his offending; and significantly, he had not been drinking since 1994. This latter development was contrary to the Tribunal's conclusion, without evidentiary foundation, that the applicant had an "intractable" problem with alcohol. 39 It was submitted that the critical issue arising in this ground of appeal was the Tribunal's conclusions concerning the applicant's relationship with his son. The Tribunal put aside, it was submitted, the evidence of the applicant and his witnesses concerning this relationship in favour of its own "untutored" opinion that the child's best interests lay in having no further contact with the applicant. The Tribunal had given excessive weight to some considerations, such as the revocation of parole, while giving inadequate weight to important considerations, such as the nature of the applicant's relationship with his child. 40 Counsel for the Minister submitted that the Tribunal had been unpersuaded by the evidence given by the applicant and there was nothing to suggest that the Tribunal ignored the matters identified by counsel for the applicant. It was submitted that the Tribunal's conclusions were clearly open to it on the evidence. Counsel also submitted that the Tribunal's finding that the applicant had an "intractable" alcohol problem was not without evidentiary basis. The applicant had acknowledged his previous alcohol abuse to the Tribunal and his family; had demonstrated poor compliance with his parole conditions relating to drug and alcohol relapse prevention programs; and had been described in a 1996 prison report a having pursued "binge pattern of alcohol abuse". Finally, in relation to the relationship between the applicant and his son, it was submitted that the Tribunal was, in light of the evidence, entitled to form the view it did. Counsel noted that while opinions on such matters may differ, difficult assessments of this kind are matters which lay tribunals may and in some cases must undertake. 41 It is sufficient to say, in relation to the submission on behalf of the applicant on this issue, that it appears to involve an impermissible challenge to the evaluation of the evidence by the Tribunal: see Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1, or a challenge to the decision on the basis of Wednesbury unreasonableness. That latter submission was also put expressly. In my opinion the Tribunal's decision was open to it on the material before it and this ground of appeal is not made out. 42 Having regard to the conclusion I have reached in relation to the first issue raised in this appeal, the Tribunal's decision should be set aside and the matter remitted to the Tribunal for reconsideration.

Naisauvou v Minister for Immigration & Multicultural Affairs

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