Birceru, Peter v Minister for Immigration & Multicultural Affairs [1998] FCA 417

FEDERAL COURT OF AUSTRALIA MIGRATION - applicant a Romanian citizen - applicant committed criminal offences while resident in Australia - whether Minister empowered to deport applicant pursuant to ss 200 and 201 Migration Act 1958 (Cth). Administrative Appeals Tribunal Act 1975 s 44 Migration Act 1958 (Cth) ss 200, 201 Nevistic v Minister for Immigration and Ethnic Affairs 1981 51 FLR 325, referred to

PETER BIRCERU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 658 of 1997 MARSHALL J MELBOURNE 6 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 658 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT G.L. mCdonald

BETWEEN: PETER BIRCERU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 6 APRIL 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed, with costs, including reserved costs, if any. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 658 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT G.L. mCdonald

BETWEEN: PETER BIRCERU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MARSHALL J

DATE: 6 april 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT MARSHALL J This matter is an appeal from a decision of the Administrative Appeals Tribunal ("AAT") constituted by Deputy President McDonald made on 28 October 1997. In his decision, Deputy President McDonald affirmed a decision made by a delegate of the respondent to deport the applicant, Mr Birceru. The appeal lies pursuant to s 44(1) of Administrative Appeals Tribunal Act 1975 ("the AAT Act") which provides that: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." BACKGROUND Mr Birceru is a citizen of Romania. He is not an Australian citizen. He entered Australia on 29 July 1978 as a refugee. Mr Birceru was then 25 years old. He is now 45 years old. He has never married and has no children. Mr Birceru's mother resides in Romania. He has not spoken to her since 1987 when he had a telephone conversation with her. He has a brother in Romania with whom he has not had contact since 1977. Mr Birceru has a long criminal record, including mainly theft of motor vehicles and use of heroin. Due to his drug addiction he has not been in employment in the last decade. During that time he has either been in prison or receiving social security. In 1980 Mr Birceru was sentenced to twelve months imprisonment for theft of a motor car. This offence was committed on 16 March 1980. On 22 July 1988 Mr Birceru was again convicted of theft of a motor car and sentenced to twelve months imprisonment. This offence was committed on 1 May 1986, within ten years after his arrival in Australia. In 1980 and 1988 Mr Birceru received warnings from the Department of Immigration and Ethnic Affairs concerning his liability for deportation arising from his criminal conduct. On 9 June 1997 a delegate of the respondent decided to deport Mr Birceru. The delegate observed in the decision that Mr Birceru "has an extensive history of continuous offences, at this point in time totalling in excess of 146 convictions." Mr Birceru appealed from that decision to the AAT. Proceedings before the AAT were held on 27 October 1997. On 28 October 1997 the AAT affirmed the decision of the delegate. On 25 November 1997 Mr Birceru filed a notice of appeal in the Victoria District Registry of the Court. The questions of law said to be raised on the appeal were as follows: · "The fair and just administration of sections 200 and 201 of the Migration Act 1958."

· "That in all circumstances the decision of the Minister for Immigration and Multicultural Affairs was unsafe and unsatisfactory."

· "That in all circumstances the decision of the Administrative Appeals Tribunal was unsafe and unsatisfactory." THE DECISION BELOW The AAT held that the discretion vested in the Minister by s200 of the Migration Act 1958 ("the Act") to order deportation had been enlivened, as the requirement specified in s201 of the Act had been "fulfilled". Mr Birceru was a non-citizen of Australia who had been convicted of an offence which was committed within ten years of him entering Australia and for which he was imprisoned for twelve months. The AAT noted that the power of deportation under the Act was "not otherwise fettered". The AAT referred to Australia's Criminal Deportation Policy ("the Deportation Policy") announced by the then responsible Minister, Mr Hand, on 24 December 1992. It held that the Deportation Policy should be followed unless good reason is shown to depart from it. Clause 12 of the Deportation Policy was referred to in the AAT's decision. Deputy President McDonald said that: "Clause 12 nominates a number of serious offences which may render non-Australian citizens liable to deportation. Those offences include the production, importation, distribution, trafficking and commercial dealing in heroin or other hard drugs, offences of violence, organised criminal activity and crimes against children. Clause 12 specifically states with respect to drug-related crimes that the Policy: '... does not necessarily apply to persons who use hard drugs for their own consumption who were not involved in above illegal actions." i.e. the Policy clearly distinguishes between those who produce, import, distribute, traffic or commercially deal in hard drugs from those who are addicted to the taking of such drugs. The latter category of person is clearly considered as being less of a risk to the safety and protection of the Australian community than is the former." Later in his reasons for decision, the Deputy President said: "The deportable offence of which he has been convicted is that of stealing a motor vehicle. It was an offence dealt with in the Prahran Magistrates' Court. The circumstances were that Mr Birceru said that he purchased the car from another Romanian and he apparently had the use of it for a period of 12 months before the Police discovered the car as being stolen. Mr Birceru has denied that he was aware of it being stolen. The Tribunal is, however, bound by the fact of the conviction and sentence imposed by the Magistrate. There is no recording of Magistrates' Courts proceedings in Melbourne and consequently there is no record of any comments made at the time of sentencing which I am able to take into account. The applicant's conviction for that offence is clearly not a conviction for an offence of the type contemplated by clause 12 of the Deportation Policy." Further reference to clause 12 of the Deportation Policy was made in the following excerpts from the AAT's decision: "The Tribunal accepts that Mr Birceru has not been convicted of any of the serious offences nominated in clause 12 of [the Deportation Policy]...." "The continuing need for a person such as the applicant in this case to commit offences in order to feed an addiction to illicit drugs carries with it a risk to the community, e.g. driving under the influence of drugs may cause an accident resulting in an injury to an innocent third party, a minor assault may have unintended, but nevertheless serious, consequences for the victim, and (sic) addict may be tempted to sell some of his or her supply of illicit drugs at a profit to ensure his or her ability to purchase further supplies, offences involving fire arms may result in injury, etc. All of these acts result in a threat to the safety of the community and hence to its welfare. While the Tribunal appreciates the Deportation Policy itself in clause 12 acknowledges an addict will 'not necessarily' be considered for deportation the Policy clearly does not preclude such consideration. The continuous threat to the safety of the Australian community arising from the commission of many more minor offences, resulting in short terms of imprisonment of 3, 6 or 12 months duration, may in the end constitute a sufficient threat to the safety and welfare of the community to cause it to conclude, in the absence of any other factor favourable to the convicted person, the removal of that person is in the best interests of the community. Having regard to the facts as found by the Tribunal, that this is one of those very rare cases where the applicant should be deported despite not committing any one of the nominated serious offences as provided for in clause 12 of the Policy." The final excerpt cited above also represented the AAT's conclusion for exercising its discretion in the manner it did. SUBMISSIONS ON APPEAL AND CONSIDERATION OF THEM Mr Birceru submitted that proper consideration was not given to paragraph 12 of the Deportation Policy by the AAT. The examination of the above passages from the AAT's decision, in my view, reveals to the contrary. The AAT properly considered paragraph 12 of the Deportation Policy. It correctly concluded that the serious offences referred to therein did not provide an exhaustive list of the offences which may make a person liable to deportation. So much is evident from the opening words of the paragraph which provide that: "Examples of serious offences which may render non-Australian citizens liable to deportation include: ..." Mr Birceru, in his notice of appeal, contended that the AAT did not properly consider another AAT decision regarding a Mr Lawson, which was also an appeal to the AAT. See Re Lawson v Minister for Immigration and Multicultural Affairs (1996) 43 ALD 661. However, Mr Birceru did not identify the relevance of that case to the circumstances of his case, other than to identify Mr Lawson as a "bigger drug trafficker" than himself. Finally, Mr Birceru submitted that the Deportation Policy was not operative until December 1992. However, he conceded that whether the Deportation Policy was operative or not when he committed an offence in 1986, it was of no relevance to his case. Mr Birceru did not dispute that he was liable to be deported under ss 200 and 201 of the Act. His major complaint was directed to why the respondent had decided to deport him in 1997 in relation to an offence which occurred in 1986. The answer to Mr Birceru's complaint can be found in the recommendation to the respondent's delegate, which was made in June 1997. That recommendation, in the circumstances, bears repeating: "The Government's criminal deportation policy sets down that deportation judgments are made for the purpose of protecting the safety and welfare of the Australian community and to exercise a choice on behalf of the community about who will be permitted to remain as a permanent resident. In doing so it is necessary to balance the benefits accruing to the community as a whole by an offender's removal against the possible hardship to the person and family concerned. Birceru is a constant offender who has a long history of criminal convictions in Australia. The nature of his crimes and his constant re-offending coupled with his involvement in drug trafficking, exposing the community to the harmful effects of drugs, mean that he is a menace and a danger to the community. His continuing re‑offending demonstrates a disregard for the laws of Australia and for other members of the community. While he was previously warned on 28 November 1988, his offences have continued unabated. Birceru claims that, provided he is able to give up drugs, he will be able to change the direction of his life and stop his criminal offending. However, there is little indication that he possesses the motivation to do so and he appears to lack any realistic plans or long-term goals. Moreover, he appears to lack any real support. In the 19 years he has been resident in Australia, Birceru has been a substantial cost to the community and factors pointing to a change in the future are noticeably absent. The Government's criminal deportation policy states that deportation of a person may be appropriate when a person 'has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia'. In weighing up the hardship to Birceru against the interests and protection of the Australian community, I submit that the factors in favour of deportation outweigh those factors in favour of his being permitted to remain in Australia. Accordingly, if you accept the findings on material questions of fact and the assessment set out above, I recommend that you order the deportation of Petre BIRCERU." It is important in the circumstances to also bear in mind the observations of Deane J in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 333 where his Honour, then as a member of this Court, said as follows: "The appeal to this Court lies pursuant to the provisions of s. 44 of the Administrative Appeals Tribunal Act 1975 (Cth). By the express provisions of that section the appeal is limited to a question of law. This Court is not entrusted with the duty or power to conduct a review on the merits of the Minister's decision on the question of deportation of an alien. That power and duty is entrusted to the Administrative Appeals Tribunal and to that Tribunal alone. The gravity of the consequences of the deportation of the applicant, to the applicant himself, to his wife and to their four Australian children leads inevitably to a desire to ensure that the applicant has access to every legitimate avenue of appeal. It cannot, however, warrant the court's purporting to arrogate to itself a jurisdiction which it does not possess." Further, at page 335, his Honour said: "The assessment of the overall merits is, however, for the Tribunal and not for this Court. The above questions and problems, including the weight to be given to government policy, are for the consideration of the Tribunal in the performance of its functions. They do not, in themselves, constitute or involve any question of law." Consequently, in the absence of any error of law being disclosed in the AAT's decision to affirm the decision of the respondent's delegate to deport Mr Birceru, I have no alternative but to dismiss the application. ORDER The order of the Court is that the application be dismissed with costs, including reserved costs, if any. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate: Dated: 6 April 1998

Applicant appeared in person

Counsel for the Respondent: Mr Warren Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 6 April 1998

Date of Judgment: 6 April 1998 (ex tempore and revised from transcript)