Perez v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1999-09-24|Before: Madgwick J

REASONS FOR JUDGMENT HIS HONOUR: 1 This is, as Dr Chappell said in the Administrative Appeals Tribunal, a "sad and tragic" case. Factual Background 2 The facts of this matter were set out in some detail in the Tribunal's reasons, and the following summary has been paraphrased from them. A "Marielito" becomes a refugee in Australia 3 The applicant, Mr Perez, was born in Havana, Cuba, in 1958. At the age of seventeen or eighteen he was jailed for approximately four years for fighting. Soon after being released from prison, in 1980, the applicant was told that due to his criminal record he would be deported. In April 1980 Fidel Castro announced that all those who wished to leave Cuba would be permitted to do so, and in May the applicant, along with tens of thousands of fellow Cubans, departed the port of Mariel for the United States, in what became known as the

Mariel Boatlift. Only later was it realised that the boatlift had been, at least in part, a conscious exercise to rid Cuba of "undesirables". 4 Upon arrival in the United States the applicant was interviewed by immigration officials. The applicant told them that he had been jailed in Cuba. He was also interviewed by an Australian consular official. The applicant was invited to migrate to Australia and on 16 June 1980 he arrived in Sydney as a refugee. From refugee to deportee 5 The applicant moved into a flat in Cabramatta with several fellow Cuban refugees. In January 1981 the applicant and one of his flat mates, armed with knives, were involved in a fight in a disco that resulted in the death of one man and the wounding of four others. As a consequence the applicant was convicted of malicious wounding and he, and his friend, were sentenced to ten years imprisonment with a non-parole period of four years. A delegate of the then Minister for Immigration and Ethnic Affairs considered whether deportation of the applicant was appropriate. However, as deportation to Cuba was not a practical option in 1983, the respondent, rather than pursuing the expulsion of the applicant, issued him with a verbal warning. 6 The applicant was released from prison in June 1984. Over the next two years he was convicted of a number of further violent offences. In 1986 he was again imprisoned, this time for eighteen months, for a conviction of common assault. 7 In 1988, shortly after being released, the applicant committed firearms offences and another assault, this time striking a police officer. He was not convicted of these offences until December 1992. He received a fixed term sentence of three months for the assault and eighteen months minimum term for the firearm offences with an additional term of six months. The applicant was again considered for deportation, however, due to difficulties the respondent was experiencing in returning other criminal deportees to Cuba, this course was not pursued. 8 In 1994 the applicant began a relationship with a woman named Ms Nichols. At this time Ms Nichols had a son, Christopher, who was less than two years old. The couple were married in January 1995 and had a child of their own, Joanne, who was born on 12 February 1996. 9 In March 1996 the applicant was convicted of an offence of maliciously inflicting grievous bodily harm that he had committed in December 1994, and was consequently sentenced to a minimum term of two years and three months with an additional term of nine months. He was again considered for deportation. A recommendation was made to the respondent's delegate that because the applicant had settled into a relatively stable relationship and because of continuing difficulties with the re-admittance of Cuban refugees the applicant ought not be deported. Despite these considerations, on 26 November 1996, the delegate ordered that the applicant be deported. 10 On 20 December 1996 the applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for a review of that decision under s 500 of the Migration Act 1958 ("the Act"). Mr Perez was capably represented before the Tribunal. Dr Chappell, the Tribunal's Deputy President, evidently gave the case deep consideration. On 15 December 1998 the Tribunal decided to affirm the delegates' decision and on the 11 January 1999 the applicant applied to this Court for judicial review of that decision. Proceedings in this Court 11 Emotional harm will flow to Mr Perez' two small children from the decision to deport him. There are some other and, on their face, disquieting features of the case which are unusual. Mr Perez was not legally represented in this Court, though it was submitted in writing, on his behalf, after the hearing, that the Tribunal had failed to consider the effect of deportation on the children and that the Australian government had, at the time of his departure to Australia, promised that he could remain in Australia permanently. I deal with these submissions below. In the absence of any helpful oral submissions before me on his behalf, I raised the features that concerned me with Mr Beech-Jones, who appeared for the respondent. It suffices to say that, on examination, nothing emerges to suggest any error of law, including any failure to advert to a relevant consideration, on the part of the Tribunal. Nothing, in these circumstances, is to be gained by my re-agitating those matters, with one exception, relating to the prospects of no actual deportation occurring.

Delay, real prospects of an actual deportation, and detention 12 Delay in the execution of a deportation order does not invalidate it: s 206(2). However, that may not mean that the prospect of a long delay in arranging the intended deportation is irrelevant to the question of the validity of the initial making of the order. Section 206(1) provides that, where the Minister has made an order for the deportation of a person, "that person shall, unless the Minister revokes the order, be deported accordingly". It is clear from this (and generally) that the principal purpose of and justification for the making of a deportation order is to effect the proposed deportation of the person. If it were plain that there was no prospect of effecting the deportation within a reasonable period, there might be no justification for the making of the order and the conclusion might be invited that the power to make the order was being exercised for some extraneous and therefore legally improper purpose. Further, upon its later becoming apparent, after the regular making of an order, that events revealed a practical impossibility in actually effecting the deportation, questions of the Minister then having a legal duty to revoke the order might arise. 13 In any case, regardless of the position as to validity, anticipated delay might be relevant to determining the merits, the correctness or preferability in the administrative sense, of a decision that a person be deported. Even when unaccompanied by detention, delay may involve hardship for that person and the person's family. For many a person, the pronouncement of an edict that he or she is to be deported is likely to occasion as much or nearly as much anguish as being informed that they have not long to live or that they will have to live with some serious health affliction. To be exiled from an affluent democratic country like Australia to a poor country ruled, like Cuba, on totalitarian lines is obviously a grim thing. Such a deportation might well be made grimmer by its prospect, and grimmer still if that prospect is long-continued; "Cowards die many times before their death; the brave man dies but once". Cowardice, in that sense, is common enough. 14 Nevertheless, delay on its own may be a less alarming matter than a likelihood that a practical consequence of the making of a deportation order will be indeterminate detention, in the sense of detention for a long period or an unknown period that is not acceptably short. 15 The making of a deportation order does not have a logically necessary consequence that the person concerned will be detained pending the deportation. Section 253 empowers the detention of a deportee but does not require it and s 253(8) specifically allows the release conditionally or otherwise, of a person determined under that section. However, s 253 subjects a deportee to the immediate liability to detention and, in a particular case, detention may be the probable or, as here, the practically inevitable consequence of a deportation order. 16 Where that is so, if the prospect is that such detention will be indeterminate (in the sense I have used that term), this may possibly go to the validity of the deportation order, but in any case it will certainly affect the merits of the decision. 17 Administrative detention for a long or indefinite period, except in cases of utter urgency or necessity, is abhorrent to all our legal and political traditions and to international conceptions of human rights for which Australia has signified our respect by entering into treaties. 18 Assuming the constitutional validity of such authorising legislation, such detention ought not be thought to have been authorised except by statutory language, the intention of which is clear beyond argument. 19 Two well-established principles of statutory construction support this conclusion. First, absent clear statutory warrant, fundamental common law rights and human rights ought not be abrogated. In Wentworth v NSW Bar Association (1992) 176 CLR 239 at 252, Deane, Dawson, Toohey and Gaudron JJ said: "There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter or necessary implication. They include important common law rights, procedural and other safeguards of individual rights and freedoms". It is trite law that preventive detention may not be judicially undertaken except with clear legislative, as well as constitutional warrant: Kable v Director of Public Prosecutions (1996) 189 CLR 51. Such detention by mere administrative fiat, not constrained by the elaborate safeguards in favour of liberty which attend judicial deprivations of liberty, should even less readily be taken to have been intended by an Australian Parliament.

Second, legislation ought to be read, where possible, in conformity with established rules of international law and Australia's international obligations. Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 at 38: "We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty."

Although, this second principle does not lead to the importation of the terms of a treaty or convention into Australian municipal law (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 per Mason CJ and Deane J, and Nulyarimma v Thompson [1999] FCA 1192 per Wilcox and Whitlam JJ), it does lend support to a construction which is required under the first.

20 The Universal Declaration of Human Rights 1948, Article 9 provides: "No one shall be subjected to arbitrary arrest, detention or exile". The International Covenant on Civil and Political Rights 1976, Article 9 provides: "1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

21 It follows that, where a proposed deportation order is likely to result in administrative detention of unacceptable duration, the order may not be statutorily authorised, absent clear legislative command. 22 Sections 200 and 201 of the Act provide: "200. Deportation of certain non-citizens The Minister may order the deportation of a non-citizen to whom this Division applies. 201. Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes Where: (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or (B) for periods that, when added together, total less than 10 years; … (c) 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; section 200 applies to the person." 23 The mere provisions of those sections and s 206 do not operate as such a legislative command. Some delay in effectuating a deportation order may be unavoidable. But indeterminate administrative detention is a very different thing. 24 Therefore, a deportation order may not be valid unless there is a reasonable prospect of the order being effectuated within a reasonable time. What is a reasonable prospect and what is a reasonable time would, no doubt, need to be considered in all of the circumstances which are apt to be very variable. A commonsense appreciation of practicalities ought, of course, to be brought to bear in assessing them. Relevant matters will usually include justified expectations, based on past dealings with a proposed deportee's country of nationality, about reasonably prompt effectuation of the deportation. A further consideration will be any adverse effects of the separation of parents from children by such a detention. Section 200 applies to all non-citizens; the category of non-citizens in which the putative deportee falls may well be a relevant factor. A refugee would attract these considerations at least as much as most other categories. 25 Section 253, which provides for the detention of a person in respect of whom there is a valid deportation order in force, contains the following: "253. Detention of deportee (1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person. … (8) A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs: (a) pending deportation, until he or she is placed on board a vessel for deportation; (b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or (c) on board the vessel until its departure from its last port or place of call in Australia. (9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section. (10) An officer may, without warrant, detain a person who: (a) has been released from detention under subsection (9) subject to conditions; and (b) has breached any of those conditions. (11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person." Subsections (8) and (9) must be read with the foregoing principles in mind. In subs (8) there is, in the context of the subject matter, a clear implication that there must be a real chance of a reasonably imminent deportation, as distinct from a merely theoretical or insubstantial possibility of a deportation or a deportation that can only occur at some time far into the future. Likewise, subs (9) is not intended to be a dead letter but the active source of the Minister's power to prevent injustice. In an appropriate case, the Minister will have a duty to act under that subsection: see, in a different context, Luu v Renevier (1989) 91 ALR 39 and Minister for Immigration and Multicultural Affairs v Singh [1997] FCA 355; see also Prasad v Minister for Immigration and Ethnic Affairs 1985) 6 FCR 155 and Dhiman v Minister for Immigration and Multicultural Affairs [1999] FCA 1291. 26 On a different view, s 253 of the Act may operate to diminish, or even to extinguish, the force of the interpretation to which I have referred in respect of ss 200 and 201; it may be said that the foregoing interpretative considerations ought to apply only to s 253 and not to ss 200 and 201 at all. Whatever the effect on the validity of a deportation order of the likelihood of indeterminate detention consequent upon such an order, such likelihood is, in my opinion, clearly an important matter affecting the merits of a decision to make such an order. All the above considerations, both as to delay in itself and as to possible invalidity of the deportation order on account of likely indeterminate detention, are relevant to the merits, indeed more so. 27 Dr Chappell did consider the prospects of actual deportation to be relevant to his decision though he considered that not much weight should be accorded to this matter. When the matter was heard before the Tribunal, the applicant was serving out a minimum term of over two years' imprisonment for a crime of violence, the then latest (there may since have been others) in a lifetime of impulsive criminal violence when uninhibited by alcohol. He had a few months still to serve. Negotiations with Cuban officials aimed at repatriating Mr Perez there were then in train, but were delicately balanced. The materials before the Tribunal furnished, in my opinion, evidence from which, in Mr Perez' circumstances, it might have been concluded that there was a reasonable prospect of deportation actually being effected, if the delegate's decision was affirmed by the Tribunal, and of its being effected within some reasonable period. As a matter of fact, Dr Chappell said: "There is also no evidence in the present case that Cuba has at this stage rejected the deportation of Mr Perez back to that country. Rather, the evidence shows that the diplomatic process to secure such return has been initiated through the lodgement of a third person note … There is also evidence that the Cuban government continues to view the [Memorandum of Understanding, between Cuba and Australia] as still being in effect and that this agreement will be utilised in Mr Perez's case should the deportation order be affirmed."

28 If later events belie that factual conclusion, formed on the presently available evidence, then Mr Perez would, in my opinion, not be without a remedy. Other matters: "agreement" that applicant could remain in Australia 29 It was suggested that at the time the Australian authorities allowed for the applicant's migration to Australian an agreement was entered into that would allow the applicant to remain in Australia permanently. Although, if such a promise had been made it would not operate to hinder the power of the respondent to exercise power under s 200 of the Act (see Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 17 per Mason CJ), it might be relevant as to the merits. However, no evidence was before the Tribunal, or this Court, to support this claim. Best interests of children 30 On the basis of the decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, it was argued that the respondent had failed to have primary consideration to the effect of the decision on his and Ms Nichol's children. However, the Tribunal member stated in his reasons at paras [92] and [93] that: "Best Interests of the Children: The Tribunal's View 92. In this case the Tribunal did have substantial assistance from an acknowledged expert on early childhood development, who concluded that the best interests of both Joanna and Christopher Perez would be affected adversely should their father be deported to Cuba. Ms Devlin was an impressive and persuasive witness who in both her written report … and in her personal testimony to the Tribunal emphasised the closeness of the relationship established between Mr Perez and his children despite the obvious barriers imposed through his incarceration. It was these ties to his family that afforded the best prospects for Mr Perez's further rehabilitation as well as providing the nurturing environment required by children to ensure their maximum potential in developing into stable and mature adults. The developmental prospects for both children were likely to be severely compromised whether they were to remain in Australian with their mother should Mr Perez be deported, or accompany Mr Perez as a family unit to Cuba. In the former situation the children would lose all of the benefits of having their father with them in this country while in the latter scenario they would face formidable barriers adjusting to a new non-English speaking environment in a country which was severely deprived in many ways. 93. While acknowledging the strength and significance of this evidence, and agreeing that the best interests of Mr Perez's children would be for him to remain in this country, those interests do represent a primary consideration which must be balanced against the other primary consideration of the protection of the community and the associated risk of Mr Perez reoffending in a way which could prejudice the saftey and well-being of Australian citizens." 31 It is apparent from the foregoing that the Tribunal did take account of the interests of the children as a primary consideration. However, in particular it was suggested that the Tribunal had not considered the effect that the decision may have on Ms Nichol's mental illness and the impact that such illness may, in turn, have on their children. It is quite clear that the member was aware of the impact of the applicant's deportation on the family unit as a whole. Among other things the Tribunal stated: "The submissions made on behalf of the respondent did not contest that the best interests of the children probably would be best served by them remaining in this country as a family unit with both their mother and their father." (Emphasis added) Disposition 32 Accordingly, the Tribunal's order is not attended by legal error. The appeal is dismissed with costs. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 24 September 1999 Friend of the Applicant: L Tabchouri

Solicitor for the Respondent: Australian Government Solicitor

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