Wang v Minister for Immigration & Multicultural & Indigenous Affairs

· failing to take relevant considerations into account in the exercise of the power under s 200;

· exercising power so unreasonable that no reasonable person could have so exercised the power;

· reaching a decision based on the existence of a fact and that fact did not exist;

· reaching a decision that was irrational or illogical; · failing to consider the case put by the applicant and thereby failing to exercise jurisdiction.

Factual background 3 The applicant is a citizen of China. He was born on 29 March 1968 in China and migrated to Australia with his parents and younger sisters on 17 December 1985. He was then 17 years old. 4 Between 8 March 1986 and 19 October 1986 the applicant committed several serious offences in three States. The offences included rapes, sexual intercourse without consent, indecent assault, breaking and entering and stealing. 5 The applicant was sentenced to seven years imprisonment in each of South Australia and New South Wales and three years and four months imprisonment in Victoria. 6 On 16 September 1997, a delegate of the respondent signed a deportation order in respect of the applicant, based on an offence committed by the applicant on 16 September 1986 in New South Wales. The offence was one of sexual intercourse without consent. 7 The applicant appealed to the AAT in respect of the deportation order. On 25 July 2001, the AAT affirmed the decision to deport the applicant. The applicant then applied to the Court. The Court allowed the appeal, set aside the decision of the AAT and remitted the matter to the AAT for reconsideration. On 13 June 2003, the AAT affirmed the deportation decision. The applicant has appealed from that decision.

Statutory Context 8 Section 200 of the Act provides: "The Minister may order the deportation of a non-citizen to whom this Division applies." 9 Section 201 provides, so far as is material: "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:

(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;

10 It is not in contest that s 200 applies to the applicant. The 26 September 1986 offence resulted in the imposition of a 6 year sentence of imprisonment. At the time of the conviction the applicant had been resident in Australia for less than ten years. 11 Section 499 permits the respondent to give "written directions" to "a person or body having functions or powers under this Act." 12 The relevant "Ministerial Direction" for present purposes is "General Direction - Criminal Deportation - No 9" of 21 December 1998 ("the Direction").

The reasoning of the AAT 13 The AAT referred to the Direction and observed that under it: "A decision-maker is directed to have regard to two primary considerations and to a number of other considerations. 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." 14 The relevant primary consideration in this matter identified by the AAT was "the expectations of the Australian community". It also noted that other considerations identified by the Direction as being relevant, but of less weight, were: "(a) the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and

(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.

"…the Australian community's attitude to the nature of the crimes themselves."

"Rape is a crime that is unacceptable to the Australian community. The rape of four young women over such a relatively short period of time is extremely worrying and something that must be weighed in the balance." 27 The community's attitude to the offences was, in the view of the AAT, "appropriate" to be taken into account as a relevant, but not as a sole determining, factor going to whether the deportation order should be affirmed. No issue appears to have been taken by the applicant with the AAT's treatment of this factor. 28 The AAT next considered what it described as "other than primary considerations". Those considerations were said to "concern Mr Wang and his family and the hardship that they will face should he be deported."

· has made plans for his future in Australia, which include returning to the family home and assuming responsibilities as a son, such as the repayment of a mortgage;

· will support him in his endeavours to find work or otherwise help him to establish a restaurant; · would be devastated if he was deported, given that it would be unlikely that his parents would see him again. 30 The AAT also accepted that the applicant had received an offer of long term employment in Australia and was able to access a community organisation for support. 31 The AAT considered that there was "a risk" on return to China that the applicant would be charged again with the offences for which he has served time in prison in Australia. 32 The AAT accepted that on return to China the applicant would initially be isolated due to his poor Mandarin and lack of family or friends. It considered that "his life in China would be difficult at least initially even if he were not to face charges on his return." 33 In summary, the AAT considered that it was required to weigh up competing risks to the Australian community and to the applicant.

"relatively low if Mr Wang completes the CORE programme but it is a relatively low risk of the repetition of a very serious [crime]." It also said that:

"If Mr Wang does not complete the CORE program, the risk is much greater… There must be a risk, unquantifiable as it may be, that Mr Wang will not complete that course successfully." 35 It was accepted that there existed a risk to the applicant's life and liberty on return to China. 36 The AAT said that, in balancing the two risks, it had regard to the hardship the applicant's family would suffer on his deportation. By that, the AAT meant that it weighed that factor on the side of the risk to the applicant. 37 In conclusion, in affirming the deportation order, the AAT said that: "…the nature of the offences…are so serious…that the need of the Australian community to be protected from the risk of their repetition (even though that risk may ultimately prove to be small), outweighs the risk to the individual…and the hardship to him and his family."

Only Questions of Law 38 As was said by Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18]: "a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law." See also Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; (2003) 202 ALR 450. 39 It is to each alleged question of law that the Court now turns.

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."

That is exactly what the AAT then proceeded to do. 48 The AAT had regard to the applicant's age when he entered Australia, his age on imprisonment and his current age: see the AAT's reasons at [20], [30], [68] and [94]. 49 At [95] the AAT said that: "The next 17 years [after the offences] have been spent in the prison systems of three Australian States at various levels of security."

50 This observation contradicts the assertion that the AAT did not have regard to his spending of almost half his life in prison in Australia in his formative years. Further, the AAT's observation about it "having regard" to the Direction contradicted the view that it applied it inflexibly. The AAT was alive to the significance of the applicant's long period of imprisonment and the likelihood that he had matured in the years between turning 18 and turning 35. To read the AAT's decision the way in which the applicant's counsel urged that it be read would not be to accord it a fair reading. 51 The reasons for decision of the AAT do not disclose that it inflexibly applied the Direction, without regard to the applicant's individual circumstances and the merits of his case, including its unique features. The alleged error of law, in this regard, has not been made out.

52 The second alleged question of law raised by the applicant was:

"Did the Tribunal err in law by taking irrelevant considerations into account in the exercise of power under s 200 of the Act?"

"the Tribunal erred in law by taking into account irrelevant considerations, namely that the Applicant had not completed the CORE Sex Offender Program Management and Intervention Program."

54 It is doubtful whether this question is truly a question of law. On one view it appears "intended to call into question whether the Tribunal failed to give proper consideration to the evidence before it": see Saxby Bridge at [152], per Jacobson and Bennett JJ. 55 On the assumption that it does raise a question of law, it is without merit because the question of completion or otherwise of the CORE program was treated by the AAT as a central consideration on the issue of the likelihood that the applicant would re-offend on release.

Failure to take into account relevant considerations 56 The third question of law allegedly raised by the applicant was: "Did the Tribunal err in law by failing to take relevant considerations into account in the exercise of the power under s 200 of the Act?"

57 The ground in support of that question referred to various considerations said not to have been considered by the AAT. 58 This is not a proper question of law as it "seems to [me] to be intended to call into question whether the Tribunal failed to give proper consideration to the evidence before it": Saxby at [152]. 59 As pointed out in Birdseye at [11], the existence of a question of law is the subject matter of the appeal itself. At [13], it was emphasised that a question does not become one of law simply because it is framed using expressions such as "whether the Tribunal erred in law". The framing of a question in that way cannot make it a question of law. 60 Further, even if the AAT failed to take into account "relevant considerations", it does not lead to the conclusion that jurisdictional error occurred. An administrative tribunal will only err in that way if it fails to take into account a relevant consideration that it was bound to take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40, per Mason J. 61 In any event, most of the matters recited in the ground in support of the alleged question of law were dealt with by the AAT. To the extent that they were not dealt with in the way the applicant desired, the applicant's complaint is essentially that the AAT failed to give proper consideration to the evidence before it. That involves the examination of a question of fact, not one of law. 62 The third alleged question of law is not a properly framed question of law. On the assumption that it has that quality for the reasons expressed above, its answer is in the negative.

"Did the Tribunal err in law by an exercise of power that was so unreasonable that no reasonable person could have so exercised the power?"

64 The ground in support of the question merely re-states the question so as to answer it in the applicant's favour. The ground does not "indicate in a summary way the reason why that resolution [of a question of law] requires the decision of the AAT to be set aside": see Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 per Ryan J, which was cited with approval by Branson and Stone JJ in Birdseye at [13] to [16]. 65 In any event, on a fair reading, it would be unrealistic to describe the reasons of the AAT as unreasonable, in the legal sense. This alleged question of law appears to do no more than take issue with the reasoning of the AAT on questions of fact: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J. 66 The fourth alleged question of law is answered in the negative.

"Did the Tribunal err in law by reaching a decision based on the existence of a fact and that fact did not exist?"

68 The ground in support of that question identifies that fact as:

"that there was evidence that the Applicant was a risk to the Australian community."

69 This ground is without substance and the question should be answered in the negative. One only has to consider the comments of the various sentencing judges, set out in the reasons of the AAT, to examine the nature of the offences. Further, there was evidence of an imprecise risk of recidivism. In those circumstances it defies reality to suggest that there was no evidence that the applicant was a risk to the Australian community.

"Did the Tribunal err in law by reaching a decision that there was no evidence or other material to support?"

71 The decision of the AAT, that was alleged to have been made without evidence or other material to support, was that the applicant's risk to the community required deportation. This ground misrepresents the conclusion of the AAT. Its conclusion was that the outcome of the balancing exercise supported the affirmation of the decision to deport the applicant. The risk to the Australian community was found, on a rational and proper basis by reference to the material before the AAT, to outweigh other considerations favourable to the applicant. No error of law was committed in the AAT's approach to the resolution of its task. The sixth alleged question of law is answered in the negative.

"Did the Tribunal err in law by reaching a decision that was irrational or illogical?"

73 The ground in support merely recasts the question as an answer to the question in the applicant's favour. No question of law is truly raised on this topic. It is another example of a complaint, in effect, about the AAT's alleged failure to give proper consideration to evidence before it. For the same reasons identified on the "unreasonableness" question, this question is answered in the negative, assuming that it is a proper question of law. As the Full Court said in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, a wrong finding of fact will not demonstrate an error of law.

Failure to make findings 74 The only question of law of any substance raised on the appeal is that identified in the final question. That question was: "Did the Tribunal err in law by failing:

the case put by the Applicant as required by the [AAT Act] and thereby fail to exercise its jurisdiction?"

75 Counsel for the applicant conceded that if they were unable to establish the second placitum of this ground, the first could not be successfully raised. I consider that the second placitum is not answerable favourably to the applicant and therefore will only deal with that aspect of the question.

76 The grounds in support of this alleged question of law were as follows:

· 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."

"[did] not evaluate the evidence, nor attempt to assess the extent to which the applicant…is at risk of physical harm…"

Counsel for the applicant submitted that the same error occurred in this matter with respect to the failure of the AAT to evaluate the evidence about likely employment difficulties and the extent to which the applicant would, consequently, be at risk of harm.

82 At [51] ff of the AAT's reasons, the AAT set out the evidence that was before it on the applicant's "Plans for the future". At [60] the AAT said:

"Mr Wang has no relatives in China and has no contacts. There is no social welfare system and, with a criminal record, he would find it very difficult to find employment. It is likely that the family would have to support him from Australia were he to return. He would have difficulty with the language as his Mandarin is so poor."

83 A series of paragraphs in the AAT's reasons recount the evidence of the applicant's sister, Ms Nina Wang. That evidence was not controversial. There is no indication in the AAT's reasons that it did not accept that evidence. It is largely consistent with the conclusion of the AAT, set out at [106] of its reasons as follows: "If Mr Wang were to return to China. I find that he would be isolated, at least initially, by his lack of Mandarin. He does not have any family or family friends in China to whom he could turn for assistance. Whether his employment prospects would be limited is difficult to say. He has some qualifications and quite a deal of experience in production line work as well as good references. Whether they would have any standing in China it is not known. It is a fair thing to say that his life in China would be difficult at least initially even if he were not to face changes on his return."

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.

The privative clause issue 88 Counsel for the respondent submitted that the AAT's decision was a privative clause decision, in accordance with s 474 of the Act, and was therefore immune from attack. It is unnecessary to consider this issue as the appeal is without merit, as no question of law, real or alleged, in the proceeding has been answered favourably to the applicant.

Order/costs 89 Having regard to the foregoing, it is appropriate to order that the appeal be dismissed, with costs. The applicant resisted a costs order on the basis that he preferred what little money he had left to go to his family. Counsel for the applicant acknowledged that a costs order would be made unless unusual or exceptional circumstances are shown: Ruddock v Vadarlis [2001] FCA 1865 at 11; (2001) 188 ALR 143; (2001) 115 FCR 229. No such circumstances have been shown in this matter.

90 The Court will order that the appeal be dismissed, with costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 20 February 2004 Counsel for the Applicant: Mr T Ginnane SC with Mr E Heerey

Solicitor for the Applicant: Arnold Bloch Leibler

Solicitor for the Respondent: Australian Government Solicitor