Vaitaiki v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 7 KATZ J: This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by its President, Mathews J. By its decision, the Tribunal affirmed an order which had been made under s 200 of the Migration Act 1958 (Cth) that Mr Vaitaiki be deported. The basis of the power to order deportation had been the commission by Mr Vaitaiki in 1988 of two offences, namely, threatening to inflict actual bodily harm with intent to have sexual intercourse and having sexual intercourse without consent. 8 In its statement of findings and reasons, the Tribunal, when considering the risk of re-offending by Mr Vaitaiki, referred to a number of offences which he had committed subsequently to his commission of the two offences which had enlivened the power to order deportation. In particular, it made reference to a number of indecent assault offences which Mr Vaitaiki had committed in April 1997 and of which he had been convicted after pleading guilty. 9 The Tribunal had also made reference to those indecent assault offences earlier in its statement of findings and reasons, when dealing with a submission made by counsel then appearing for the Minister that those offences fell into the category of "abhorrent" offences. (The term was one used in general directions given by the Minister in relatively recent times, which general directions were applicable in proceedings before the Tribunal.) The Tribunal had rejected that submission, although in the course of doing so, it had described those offences as having been "extremely serious". 10 When the Tribunal came to refer again in its statement of findings and reasons to those offences, for the purpose of considering the risk of re-offending by Mr Vaitaiki, it again described them as "extremely serious". It said of them, "The further offences of indecent behaviour, committed in 1997 whilst the deportation proceedings were still continuing, were … extremely serious. Although the acts themselves were not as culpable as the deportable offences [that is, the 1988 offences], the vulnerability of the victims cannot be ignored. The applicant's offences on this occasion involved a serious abuse of power and an exploitation of his victims' vulnerability." 11 The Tribunal's reference in the passage which I have just quoted to the vulnerability of the victims and to Mr Vaitaiki's serious abuse of power is demonstrated by the facts which were admitted by Mr Vaitaiki when pleading guilty to the indecent assault offences. The fact sheet which had been before the Local Court before which Mr Vaitaiki had pleaded guilty was set out verbatim in the Tribunal's statement of findings and reasons. It is unnecessary for me to repeat the substance of the facts in it, except to say that the victims of the offences were intellectually disabled. 12 There is before the Court an amended notice of appeal, which has in it one ground of appeal only, as follows: "The Tribunal failed to take into account relevant considerations, namely: in finding that the risk to Australian community posed by the applicant was unacceptably high, the Tribunal failed to take into account the sentences imposed on the applicant in treating offences in 1997 and 1998 as 'extremely serious'." 13 The first thing to be said about that ground of appeal is that the Tribunal had not characterised any offence committed by Mr Vaitaiki in 1998 as "extremely serious". It is true that there had been an offence committed by Mr Vaitaiki in 1998, an assault committed by him on his wife. That offence was described by the Tribunal in its statement of findings and reasons as having been a "brutal" assault. It was one for which the appellant was convicted and sentenced to 200 hours' community service. However, the fact is that, whatever view one may take about the seriousness of that particular offence, the Tribunal did not describe it in its statement of findings and reasons in the present matter as having been "extremely serious". It therefore follows that one must ignore the reference in the ground of appeal to the Tribunal's having characterised any 1998 offences as having been "extremely serious". That simply did not happen. 14 As to the 1997 indecent assault offences, the ground of appeal which I have set out above is perhaps elaborated upon in the recitation in the amended notice of appeal of the question of law said to be raised on the appeal. It is there said, "In assessing the acceptability of the risk posed by the applicant to the community, the decision maker failed to take into account of, or accorded no weight to, the sentences imposed, in characterising offences committed in 1997 … as 'extremely serious'." 15 As to the sentences which were imposed in respect of the 1997 offences, those being the only offences which the Tribunal relevantly described in its statement of findings and reasons as having been "extremely serious", the Tribunal said, "On 6 March 1997 and again on 2 April 1997 the applicant committed a series of indecent assaults upon women with intellectual disabilities for which he was later ordered to perform 200 hours community service." 16 (I should add that, as well as Mr Vaitaiki's having been sentenced to 200 hours' community service in respect of the indecent assault offences, he was also placed on a three year good behaviour bond.) 17 The ground of appeal, as I understand it then, is that in some sense the Tribunal was bound, when determining the seriousness of the 1997 indecent assault offences for the purpose of predicting the likelihood of future offences by Mr Vaitaiki, to give weight and perhaps even conclusive weight (I am not sure which) to the view of their seriousness which had been taken by the sentencing magistrate. 18 Accepting for the sake of argument that one can infer, by reason of the sentence imposed, that the sentencing magistrate did not consider the 1997 offences to be extremely serious, in my view, there was no obligation whatever on the Tribunal to accept the characterisation of the seriousness of the offences which had been given by the magistrate. The purpose for which the Tribunal was inquiring into the question of the seriousness of the offences was an entirely different one than the magistrate's had been. 19 In numerous decisions of Full Courts of this Court (admittedly dealing specifically with offences which enlivened the power to order deportation, a fact which, it seems to me, should not matter for present purposes), the view has been taken that it is open to the Tribunal to form its own assessment of the seriousness of relevant offences. I refer below to a number of those authorities. 20 The first is Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649. In the joint reasons for judgment of Fisher and Lockhart JJ (at 653) appears a useful passage, part of which refers to the ability of the Tribunal "to make its own assessment of the nature and gravity of the applicant's criminal conduct". 21 A similar statement is made in another Full Court decision, Degerli v Minister for Immigration and Ethnic Affairs (1981) 4 ALN 16, at N40 (Keely, Fisher and Davies JJ). 22 In Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209, Sheppard J said (at 233), with the concurrence of Fisher J, that: "[T]he Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it." 23 Finally and most recently there is the decision of a Full Court (Wilcox, Lindgren and Tamberlin JJ) in Sui v Minister for Immigration and Ethnic Affairs (1996) 47 ALD 528. There, an applicant in the same position as Mr Vaitaiki submitted that the Minister (and, ultimately, the Tribunal) was bound by certain remarks favourable to the applicant which had been made by the sentencing judge. However, it was said by the Full Court (at 536) that, "The minister and the tribunal had to assess, for themselves, the prospects of recidivism and balance these prospects against the interests of the Australian community, in determining whether Mr Sui should remain in Australia. The tribunal had to exercise the discretion at the time when it made its decision having regard to the circumstances, policies and relevant considerations prevailing at the time when the decision is made. This is what the tribunal did in the present case. On no view can it be said that there is any error of law based on the ground that the minister, the department, or the tribunal should have considered himself or itself bound by, or should have followed, the remarks of Kinchington J." (Kinchington J had been the sentencing judge in that case.) 24 My view of the effect of the authorities to which I have referred above is that the sole ground of appeal relied upon by Mr Vaitaiki before us must necessarily fail. I would therefore dismiss his appeal with costs.