Wang v Minister for Immigration & Multicultural & Indigenous Affairs

Wang v Minister for Immigration & Multicultural & Indigenous Affairs - [2004] FCA 108 - FCA 2004 case summary — Zoe

[16]

(b) the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation." 15 The AAT identified further issues relevant to the Direction. Insofar as those issues are relevant to any alleged error of law they will be referred to later in these reasons. 16 Under the heading "Consideration", the AAT identified the issues it was required to consider. The first was described as: "the seriousness of the convictions upon which the order for deportation was made." 17 The AAT found that the convictions and the other offences, which occurred in 1986, were very serious. No issue was taken with that finding on the appeal. 18 The second issue was described by the AAT as: "whether or not Mr Wang is likely to commit further offences if he were permitted to remain in Australia after he is released from prison." 19 In respect of the second issue, the AAT examined the applicant's background, his undertaking of courses whilst in prison and his commencement of a sexual offenders program known as "CORE". It noted that in 1997 and 1998 the applicant showed a lack of interest "in taking part in courses to address his offending behaviour or to make use of services to do so". It found that the applicant was unlikely to complete the CORE program before his release, but intended to do so, possibly after his release. 20 The AAT found that if the applicant completed the CORE program his risk of re-offending would be reduced, but that "further refinement of that risk is difficult". It noted that the applicant had an intellectual impairment and said that persons with such an impairment "have a higher risk of recidivism than those who do not". 21 The AAT made no specific or firm finding on the second issue. The above summary of the findings it did make tends to suggest that it viewed the applicant as having some unspecified risk of re-offending, given his intellectual impairment and that he had not completed the CORE program. 22 The third issue referred to by the AAT was: "whether, if Mr Wang were to be deported, his deportation would be expected to deter other non-citizens from offending." 23 The AAT said: "It would certainly deter those who would be likely to be deterred in any event. Whether it would deter a 17 or 18 year old who is isolated from the mainstream Australian community by his language and cultural background and who is placed in an environment where he seems not to understand that, for all its apparent freedoms, the standards of right and wrong in relation to stealing and rape are similar to those in his own culture, is another matter entirely." 24 No question arises in any alleged error of law in the proceeding about the AAT's approach to the third issue.

[24]

Deciding in accordance with policy and without regard to the merits 40 The first question of law raised by the applicant was: "Did the Tribunal err in law by exercising a discretionary power in accordance with a rule of policy without regard to the merits of the case?" 41 The ground in support of that question was expressed as follows: "the Tribunal erred in law by reaching a decision by the application of [the Direction] without regard to the merits of the Applicant's case and its unique features" 42 It was submitted by counsel for the applicant that the AAT's balancing of the two risks, referred to in the concluding stages of its decision, revealed: "the application of policy without regard to the merits of [the] individual case." 43 It was contended that a rigid application of the Direction occurred "without regard to the fact that the applicant had spent part of his formative years, almost half his life, in prison in Australia". 44 It was submitted that the Direction is intended to guide, not bind the AAT. It was put that the Direction was rigidly applied, in the sense that it was used by the AAT to limit its own consideration of the matter. It was contended that the AAT decision neglected what counsel described as "big picture issues", such as the significance of the applicant's lengthy period of imprisonment and his maturity during that period. It was emphasised that this case had special and unique facts, including that the applicant was 18 years old when imprisoned and is now 35 years old. 45 It was acknowledged by counsel for the respondent in his written outline of submissions that the AAT will not perform its duty if it acts in blind obedience to an inflexible rule of policy: see R v Moore; ex parte Australian Telephone and Phonogram Officers' Association (1982) 148 CLR 600 at 612. However, counsel for the respondent submitted that the AAT comprehensively considered the factual matters advanced by the applicant, and the matters in the Direction, before conducting an appropriate balancing exercise. In so doing, it was submitted, the AAT did not err. Counsel referred, inter alia, to the judgment of the Full Court in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 70 ALD 644; (2002) 118 FCR 326. 46 The complaint of the applicant concerning the application of an allegedly inflexible rule of policy by the AAT is misplaced, as an examination of the AAT's reasons reveals. 47 At [6] of its decision, the AAT noted that the Direction required a decision maker to: "have regard to two primary considerations and to a number of other considerations." (emphasis supplied) Importantly it continued: "While having due regard to the importance placed by the Government on the two primary considerations, a decision-maker should also adopt a balancing process which takes into account all other relevant considerations."

[47]

· the AAT erred in law by failing to make findings about the risks and hardships that the applicant would or would be likely to suffer if deported to China, and · the AAT erred in failing to make findings about the risks of the applicant re-offending. 77 Counsel for the applicant referred the Court to s 43(2B) of the AAT Act, which requires the AAT to make findings on material questions of fact. "Material questions of fact" are "the substantial issues on which the case turns": see Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402. 78 It is not necessary for the AAT to set out its reasoning on every matter raised in the proceeding. Its obligation, as referred to in Muralidharan, is to make findings and give reasons in respect of the substantial issues on which the case turns: see also Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 481, per Wilcox J. 79 In respect of the submission that the AAT failed to make material findings about the degree of hardship that the applicant would suffer if returned to China, counsel noted that the applicant and members of his family gave evidence about the bleak employment prospects for him in China and the difficulties that would arise from his likely failure to gain employment. Counsel also observed that country information tendered by the applicant to the AAT supported that view and included references to what people without work permits could expect to suffer, as well as to the particular repression in the applicant's home province. 80 Counsel placed particular emphasis on the judgment of Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713; (1999) 30 AAR 482; (1999) 57 ALD 161 where it was held at [43] that: "having regard to the scope of the discretion conferred by s 200 of [the Act] and the terms of the Direction, the nature and degree of hardship the applicant was likely to experience, or was at risk of experiencing, if deported …was a material question of fact on which the AAT was bound to make a finding."

[53]

84 At [106] the AAT did not set out all the evidence concerning the hardship that the applicant would suffer as a result of being unemployed in China. It was not required to do so. It was only required to make a finding about the issue and consider what relevant harm may flow to the applicant. The AAT performed that task. It looked at the employment issue and found it difficult to say if it would be a problem for the applicant, but did find that his life would be difficult "at least initially" if he returned to China. Whilst this finding is expressed in an extremely brief fashion, it cannot be said, with any justification, that the AAT failed to make a finding on a material question of fact in respect of the employment and associated difficulties that might befall the applicant if he were deported to China. The AAT in this case did not commit the error identified at [79] above that occurred in the approach taken by the AAT in Bustescu. 85 Counsel for the applicant also alleged that the AAT failed to make a finding on the material question of fact concerning the risks of the applicant re-offending. 86 At [107] of its reasons the AAT found that if the applicant completed the CORE program, the risk of him re-offending would be low. It earlier accepted that he would use his best endeavours to complete the program, even after release, if not deported. It found the risk of re-offending to be high if the program was not completed. In the penultimate sentence of its decision at [108], the AAT, on the assumption that the risk of re-offending is small, found that other factors militated against exercising the discretion not to deport the applicant. In those circumstances, I do not accept that the AAT failed to make a finding on the risk of the applicant re-offending. The risk depended on the completion of the CORE program. The AAT could not say if it would be completed. Who could say for sure what would occur in that regard? No legal error has occurred as a consequence of that approach. 87 The AAT is required to consider the case put by the applicant. It must not fail to deal with any discrete claim made by the applicant. To do so would be to err in law. But the AAT did not fail to deal with a discrete claim in respect of the "risks" issues discussed in the previous paragraphs. Although it did not make precise findings about the matters identified at [76] above, it did its best to offer a view about the potential for the occurrence of each risk and any consequent hardship. In a real sense, both topics are essentially speculative. It is not reasonable to expect the AAT to have made findings with greater precision in respect of the two relevant risks.

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Judgment (59 paragraphs)

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Cases Cited (15)

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