Tran v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-04-29|Before: Weinberg J

background 1 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth), and s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review a decision of a Deputy President of the Administrative Appeals Tribunal ("the Tribunal") made on 10 July 2003. By that decision, the Tribunal affirmed a decision made by the respondent Minister on 28 January 2000 that the applicant should be deported, pursuant to s 200 of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant was born in Vietnam in 1971. In 1989, he fled that country, together with his sister. He arrived in Australia in 1990 having been granted a visa under a special humanitarian program. At no stage did he become a citizen of this country. 3 In November 1995, the applicant's mother migrated to Australia. He has two brothers, with whom he maintains contact, who reside in the United States. He has lost contact with another brother who resides in Vietnam. His sister continues to reside in Australia. 4 Between 1994 and 1997, the applicant was convicted of a number of criminal offences. These included various drug offences, and theft. On 6 November 1997, he became involved in a domestic argument with his sister's de facto husband. The applicant stabbed him three times with a cleaver, resulting in the infliction of serious injuries to his head and upper body. Initially, the applicant was charged with attempted murder. Eventually, he pleaded guilty to one count of intentionally causing serious injury pursuant to s 16 of the Crimes Act 1958 (Vic). On 3 July 1998, he was sentenced in the County Court of Victoria to a term of three years' imprisonment, of which two years were suspended. In addition, on 26 March 1998, he pleaded guilty in the Melbourne Magistrates' Court to various charges including trafficking and using heroin, and was sentenced to 12 months' imprisonment, wholly suspended. 5 Judge McInerney, who dealt with the applicant on the count of intentionally causing serious injury, made the following sentencing remarks: "Mr Tran has pleaded guilty to one count of causing serious injury intentionally, contrary to s 16 of the Crimes Act, the maximum penalty for which offence is a period of 20 years. The circumstances of this offence, unfortunately, [are] all too common and also all too simple. There was a domestic argument within the home between Mr Tran and his brother-in-law. The end result of that is that, under the pressure of that argument, Mr Tran utilized what, essentially, can be described as a cleaver, to assault upon his brother-in-law, to the extent that he almost opened up his brother-in-law's upper body. One only needs to look at the photographs in Exhibit A as to the consequences to see the dimension of this injury. Suffice to say that his brother-in-law was taken in a critical condition to the Western Hospital, where he was on the intensive list for a period of five days. Fortunately, he has made an adequate recovery but, perhaps, even more fortunately for Mr Tran, he did not die. … As I say, coming back to the circumstances themselves, they happened within the domestic environment. While a meal was being prepared, as a result of an argument, no doubt, I accept that there was some form or provocation, not legal provocation, but some domestic issues between Mr Tran and his brother-in-law, but, of course, those matters were not put in any way by Mr Arden as being any excuse for these offences. Mr Tran is 26. He is a person with no priors. He has no violence at all in his antecedents, and he has been particularly co-operative. I accept his evidence that he had regret for his actions, and has expressed remorse for his actions. There was, in the plea, no dispute that a period of imprisonment was called for, given the serious nature of the offence. … Taking all of those matters into account, as a result of those particular reports, I have determined, unfortunately, that, even with that background, the circumstances of this offence, its intensity and its seriousness is such that there is no alternative but for a period of immediate imprisonment to be imposed. I have determined that the appropriate period of imprisonment that should be imposed is a period of three years. However, taking into account all of the matters that have been put to me, in particular, the reports, I have determined to suspend two years of that period of imprisonment, pursuant to provisions of s 27 of the Sentencing Act 1991." 6 The applicant claimed before the Tribunal that the offence had occurred during an argument between himself and the victim, and in response to the victim having struck him on the leg with a piece of wood. The applicant claimed that the leg upon which he was struck had been permanently disfigured during a motorcar accident a few years earlier. The applicant also claimed that the victim had called him a "cripple". 7 There was also material before the Tribunal to show that in August 2000 and March 2001, the applicant was sentenced in the Magistrates' Court to an Intensive Corrections Order and two further short terms of imprisonment in relation to various drug charges. 8 On 18 October 1999, a delegate of the respondent interviewed the applicant in relation to the offence for which Judge McInerney had imprisoned him in the previous year. On 28 January 2000, the then Minister decided that the applicant was a person who came within the ambit of s 201 of the Act, and that he should be deported under s 200. At that stage, the Minister caused a certificate to be issued under s 502, stating that it was in the national interest that the applicant be declared an "excluded person". Subsequently, that certificate was withdrawn, thereby enabling the applicant to seek merits review of the decision in the Tribunal.

legislative scheme 9 Section 200 of the Act provides as follows: "The Minister may order the deportation of a non-citizen to whom this Division applies." 10 It has been recognised that the discretion of the Minister under this section is very broad. By virtue of s 201, s 200 applies to non-citizens who have been in Australia for less than 10 years, and who have been convicted of particular offences. The section provides: "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; or … (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." 11 Section 499(1) provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions, or the exercise of those powers. The Minister is required to cause a copy of any direction given under that subsection to be laid before each House of the Parliament. The Minister had given such a direction in relation to the deportation of non-citizens under s 200. That direction is described as "General Direction - Criminal Deportation - No. 9". Section 499(2A) provides that "a person or body must comply with" a direction under s 499(1). 12 The direction relevantly provides: "1. This General Direction may be cited as General Direction - Criminal Deportation - No. 9. 2. Deportation decisions are made without any form of discrimination with respect to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. A person's cultural background should not result in differing applications of the law. While our multicultural society encourages all persons to practise their cultures and pursue their ideals, this practice should fall within a respect for and adherence to the laws of Australia. Contrary cultural values should not provide any excuse to persons who offend against Australian society. 4. The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community. PRIMARY CONSIDERATIONS 5. The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations. The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7). A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. 6. In making a decision whether or not to deport a non-citizen, there are two primary considerations: (a) the expectations of the Australian community (9); and (b) in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child (10) or children. 7. In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are: (a) the degree of hardship (11) which may reasonably be expected to be suffered by the potential deportee; and (b) the degree of hardship to Australian citizens or permanent residents (12) that would reasonably be expected to flow from the deportation. COMMUNITY EXPECTATIONS 8. It is the Government's view that the expectations of the Australian community are a primary consideration in determining whether a potential deportee should be deported. Decision makers should have due regard to the Government's view in this respect. There are two aspects to community expectations: (a) the expectation that the community will e protected and not put at risk; and (b) the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia. Protection of the Australian Community 9. It is the Government's view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government's view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community. The Government considers that children and young people are especially at risk in this area. The Government acknowledges that it had a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision maker should have due regard to the Government's views in this respect. 10. It is the Government's view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection: (a) the seriousness and nature of the crime; (b) the risk of recidivism; and (c) the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons. Decision makes should have due regard to the Government's view in this respect." 13 The General Direction goes on to provide detailed guidelines for the consideration of each of the three factors set out in par 10. Relevantly, it includes among examples of offences that are considered by the Government to be "very serious" the crimes of "murder, manslaughter, assault or any other form of violence against persons". 14 The General Direction also sets out at par 21 two other matters that, though not primary considerations, are relevant. These are described as "other considerations", to be taken into account, but given less weight than the primary considerations. They are: "(a) the degree of hardship which may be suffered by the potential deportee; and (b) the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (15) (other than children whose best interests are a primary consideration."

the tribunal's decision 15 The Tribunal concluded that the respondent's decision of 28 January 2000, ordering the applicant's deportation, should be affirmed. It said: "2. The reason for the Tribunal's decision is that the seriousness and the nature of the offence for which Mr Tran is to be deported outweigh all of the other considerations which are relevant for the Tribunal to take into account in considering Mr Tran's application." 16 After summarising the background to the Minister's decision, the Tribunal set out at [10] the sentencing remarks of Judge McInerney. It continued: "11. In exercising its unfettered discretion under s 200 of the Act as to whether to order a person's deportation, the Tribunal is bound to have regard to the Minister's General Direction - Criminal Deportation - No. 9. 12. Under that Direction, the degree of hardship which may be caused to the potential deportee or to Australian citizens who are members of the potential deportee's family are two relevant "other considerations" which must be balanced against two "primary considerations", namely the expectations of the Australian community and the best interests of any child. 13. The first of the two "primary considerations" is comprised of two aspects, namely: (a) the expectation that the Australian community will be protected and not put at risk; (b) the expectation that non-citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia. 14. Further, pursuant to the Direction, the following factors are relevant to an assessment of the level of risk to the community and the need for its protection: (c) the seriousness and nature of the crimes; and (d) the risk of recidivism; and (e) the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons. 15. While Mr Tran's deportable offence, namely causing serious injury intentionally was committed in circumstances of some provocation, although as observed by McInerney J [sic] in passing sentence, "not legal provocation", it is clear that the offence is a very serious one. The penalty of 3 years imprisonment, albeit with 2 years suspended upon conditions, reflects that fact. Additionally, under the Direction it is the Government's view that assaults or any other form of violence against persons is considered by the Government to be very serious. 16. As to the risk of recidivism, the Tribunal notes that one of the reports referred to by McInerney J [sic] in his comments upon passing sentence set out above was a psychiatric report which concluded that there was no evidence of any mental illness on the part of Mr Tran, and that there was a strong likelihood of his being able to successfully refrain from further violent offending in the future if he could be given the opportunity to address his substance abuse and his lack of vocational skills. Given that evidence before the Tribunal is suggestive of Mr Tran overcoming his heroin addiction, the Tribunal does not place undue weight on the risk of recidivism, however the violence involved in the disproportionate attack by Mr Tran in response to his brother-in-law's taunts was deliberate and extreme and absent any psychiatric illness or disorder one could not have complete confidence that Mr Tran's capacity in this regard would not again manifest itself given similar circumstances. 17. As to deterrence, in general terms, no doubt Mr Tran's deportation would likely have an effect on non-citizens in Australia with respect to the commission of crimes of violence. 18. As to the best interests of any child under the age of 18 who is in a close relationship with the potential deportee, it is suggested on behalf of Mr Tran that he has a very strong bond with his sister's 9 year old son, Andrew Tho. The Tribunal does not accept this suggestion, in view of the extensive periods of Mr Tran's incarceration since being sentenced on 3 July 1998. 19. The other important consideration which must be weighed into the balancing which is involved in the exercise of the Tribunal's discretion is the hardship to Mr Tran and the members of his family which might be brought about as a result of his deportation. 20. As the Tribunal has already noted, Mr Tran was born in Saigon on 30 June 1971. His family suffered great hardship by reason of the war in that country, and Mr Tran fled there with his sister in 1989. They arrived in Australia on 23 June 1990 after spending time in Malaysia, (having arrived there after two days at sea). Mr Tran's mother did not come to Australia until November 1995. She left behind her one son, two years Mr Tran's senior, who still resides in Vietnam and another two sons, who reside in the United States of America. 21. Mr Tran's mother is now 68 years old, and her husband having passed away many years ago, her life and her happiness centres upon being able to be near her daughter, her son (Mr Tran) and her grandchildren. She has become depressed and has experienced feelings of helplessness as a result of Mr Tran being imprisoned and permanent separation from him, which is the almost inevitable consequence of deportation, would bring great sadness to her. She finds the prospect of her son being deported to Vietnam terrifying. 22. Mr Tran himself left Vietnam some thirteen years ago, and has not returned there since. He does not know where his brother is in Vietnam. He has no assets and few skills, apart from limited work experience as a sewing machinist and his prospects in Vietnam must be regarded as poor. 23. After anxious consideration of all matters relevant to the exercise of its discretion in this case, the Tribunal concludes that the expectation of the Australian community that it will be protected and not be put at risk, given the seriousness and nature of Mr Tran's crime, outweighs the considerations of hardship to him and his mother as a result of his family in Australia being separated for a second time. 24. Accordingly the formal order of the Tribunal is that the decision of the respondent's delegate of 28 January 2000 pursuant to s 200 of the Migration Act 1958 to deport the applicant from Australia on the basis of his conviction for intentionally causing injury on 3 July 1998 is affirmed."

the applicant's contentions 17 Mr Krohn, who appeared on behalf of the applicant, abandoned the grounds set out in the application for review, save two. First, he submitted that the Tribunal had committed jurisdictional error by failing to take into account a relevant consideration, being one that it was bound to take into account, namely whether the applicant posed an "unacceptable" risk to the community. 18 He referred to par 8 of the General Direction in which it is stated that the expectations of the Australia community are a primary consideration in determining whether a potential deportee should be deported. As noted earlier, that paragraph states that there are two aspects to community expectations. These are the expectation that the community will be protected and not put at risk, and the expectation that non-citizens who are convicted of crimes that are abhorrent to the community will be removed from Australia. 19 Mr Krohn then referred to the three factors, set out at par 10, said to be relevant to an assessment of the level of risk to the community and the need for its protection. The first of those is "the seriousness and nature of the crime". 20 Mr Krohn next referred to [10] of the Tribunal's reasons, in which it set out Judge McInerney's sentencing remarks. He noted that the Tribunal had underlined a number of the remarks that dealt with the seriousness of the crime, but had not attached a similar emphasis to the applicant's expressions of remorse. He argued that, therefore, the Tribunal had failed to have regard to a matter that it was required to consider, namely whether the applicant posed an unacceptable risk to the community, and instead had focussed in "an overwhelming way" on the seriousness and nature of the crime. 21 Mr Krohn next submitted that the Tribunal erred by failing to take into account a series of specific matters, two of which he said had been singled out for "special mention" by Judge McInerney. These were the finding that the applicant had expressed remorse for his crime, and the evidence that went to the relationship between the applicant and his mother. Mr Krohn submitted that when the Tribunal was considering the community's expectations, it was bound to take into account the applicant's expressions of remorse. In relation to the applicant's mother, Mr Krohn acknowledged that the Tribunal had referred to the hardship that she had experienced during her son's imprisonment. He submitted, however, that the Tribunal had failed to deal with material that had been before it concerning the relationship between mother and son.

the respondent's contentions 22 In relation to the first ground, Ms Moore, on behalf of the respondent, acknowledged that the Tribunal had placed more emphasis on the seriousness and nature of the crime than it had on the other two factors set out in par 10 of the General Direction, namely the risk of recidivism, and the need for deterrence. However, these were matters for the Tribunal. It was entitled to accord them such weight as it thought fit. 23 Ms Moore noted that par 9 of the General Direction stated that the Government's "heavy responsibility" to consider the "rights of the community" was of particular importance when dealing with "crimes of violence". In light of that statement, it made sense that the Tribunal should place the emphasis it did on the seriousness and nature of the crime committed by the applicant. 24 Ms Moore contended that, in any event, the Tribunal had adopted the correct balancing process to the overall question of whether the applicant posed an unacceptable risk to the community. It had specifically considered evidence relating to the likelihood that he might overcome his heroin addiction. She submitted that it had weighed that material against the specific circumstances of the deportable offence. It had concluded that it could not have complete confidence that the applicant would not re-offend, in similar circumstances. She submitted that the Tribunal's reasons in relation to that conclusion had addressed the issue of "unacceptable level of risk of crime". 25 In relation to the second ground, Ms Moore submitted that the applicant's complaint was, in effect, a disagreement with the Tribunal's process of reasoning on issues of fact. She argued that the applicant had impermissibly invited the Court to engage in merits review. The Tribunal's decision could not be set aside even if its process of logic and reasoning did not commend itself to the Court.

consideration 26 In my view, there is no substance in the first ground of review. Although the Tribunal did not use the word "unacceptable" in referring to the level of risk that the applicant posed to the community, I am satisfied that it did focus sufficiently upon that issue. It concluded at [16] of its reasons for decision that undue weight should not be placed on the risk that the applicant would re-offend. Nonetheless, it noted that one could not have "complete confidence" that the applicant would not again respond by the use of disproportionate violence if provoked by the conduct of another. That finding was plainly open on the evidence and, in my opinion, adequately addressed the overall issue of whether the applicant posed an unacceptable risk to the community. 27 I am also unable to accept Mr Krohn's contentions in relation to the second ground. There is no doubt that the Tribunal was aware of the fact that Judge McInerney had found that the applicant was remorseful. That conclusion was set out in the extract from his Honour's sentencing remarks contained at [10] of the Tribunal's reasons. The weight to be accorded to that factor was a matter for the Tribunal. 28 Similarly, I consider that the Tribunal adequately addressed the relationship between the applicant and his mother at [21] of its reasons. In a matter in which an applicant seeks a particular type of visa, the Tribunal is required to deal with all integers of an applicant's claim. It is not required to refer to every piece of evidence placed before it. See generally Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79], Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, and VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447. Although the applicant in the present case does not seek a visa, and is simply resisting deportation, an analogous principle may be said to apply. 29 It follows that the application must be dismissed. The applicant must pay the respondent's costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 200, 201, 499(1), 499(2A), 502

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