Ali and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 10
•7 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 10
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1560
GENERAL ADMINISTRATIVE DIVISION ) Re
Shane Ali
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date7 January 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – criminal deportation order – applicant convicted of serious criminal offences including deportable offences when a permanent resident of Australia for less than ten years – need to consider the protection and expectations of the Australian community and deterrence to others – need to consideration the hardship to the Applicant and his family if the Applicant is deported – discretion that the Tribunal may exercise – examination of the Applicant’s circumstances including his family situation – found that the applicant has a deplorable criminal history including aggravated robbery with wounding which was committed when the applicant knew he was liable for deportation, there is a real possibility of recidivism, deterrence is significant in this case, the community would expect that a non-citizen who has committed crimes abhorrent to society would be deported – held that the applicant has never lived with his daughter nor supported her financially and could continue their relationship by telephone and that his brother should be able to cope with the separation – held that the applicant is articulate and resourceful and could use these attributes to make a fresh start – held that the other considerations including the best interests of his daughter do not outweigh the protection and expectations of the Australian community – decision of the respondent is affirmed.
Migration Act 1958 ss 200, 201, 204(1), 499, 499(1), 499(2)
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Re Ali and Minister for Immigration and Multicultural Affairs [1999] AATA 1017
Re Patel and Minister for Immigration and Multicultural Affairs [2002] AATA 78
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
7 January 2005 Professor GD Walker, Deputy President Summary
1. This matter was remitted to the tribunal by the Federal Court to be dealt with in accordance with law. At issue is whether the applicant, Shane Ali, (also known as Alzaid Shain Rizwan Ali), should be deported. Mr Ali arrived in Australia from Fiji on 19 November 1987 when he was 11 years old. He was granted residence status on 18 March 1992. Between 1991 and 1997, Mr Ali committed three deportable offences, including the offences of break enter and steal with aggravation for which he was sentenced on 26 July 1996, to a minimum term of imprisonment of two years and six months, with an additional term of two years and six months.
2. On 2 July 1996, the applicant received his first warning that he might be liable for deportation. On 3 April 1999, after a second warning, a deportation order was made in respect of Mr Ali. He applied to the Tribunal for a review of that decision.
Background
3. Mr Ali was born in Fiji on 25 May 1976 and is aged 28. He arrived in Australia on 19 November 1987 on a visitor visa, arriving six months after his mother. He was aged 11 years at the time of his arrival. He was granted resident status on 18 March 1992 at the age of 15 (T p79). In about 1992, Mr Ali commenced a relationship with Natalie Ungaro and, on 7 August 1994, their daughter, Ericka Jane Ali, now aged 10, was born. The relationship ended in about 1995 (S p80). On 19 March 1997, Mr Ali married Dylane Prestidge in a Muslim religious ceremony at Lakemba, New South Wales. The marriage was not performed or registered according to federal law (T p43), and the relationship ended in 1999.
4. Between November 1991 and June 2002, Mr Ali committed a large number of criminal and driving offences. His criminal record, which is 18 pages long, includes the following offences:
Court Date
Court
Offence
Sentence
4/11/1992
Burwood Childrens Court
Stealing
Fined $150, court costs $45
30/10/1992
Bidura Childrens Court
1. Steal motor vehicle
2. Drive manner dangerous
3. Drive whilst disqualified
1. Control order for five months
2. Control order for five months, licence disqualified for three years
3. Control order five months, licence disqualified six months
15/3/1993
Bidura Childrens Court
1. Resist arrest (two counts)
2. Possess implement
3. Enter building with intent
1. Control order for one month in each count
2. Control order for six months
3. Control order for six months
19/7/1993
Cobham Childrens Court
1. Break enter and steal
2. Steal motor vehicle
3. Drive manner dangerous to public
1. Control order for three months
2. Control order for three months
3. Control order for three months, disqualified from driving for six months
31/5/1993
Bidura Childrens Court
Escape lawful custody
Control order 14 days
28/10/1994
Lidcombe Childrens Court
Assault, beat and ill-treat
Fined $200
13/4/1995
Burwood Local Court
Break enter and steal
NBS
20/2/1996
Fairfield Local Court
Assault occasioning actual bodily harm
Minimum term of 12 months from 11/10/1995, add term of three months
29/9/1995
Burwood Local Court
Seven charges including
1. Break, enter and steal
2. Goods in custody
3. Assault (two counts)
1. 100 hours Community Service Order
2. 100 hours CSO
3. $500 self, two years supervision from NSW Probation Service
17/12/1997
Liverpool District Court
1.Steal from person
2.Assault occasioning actual bodily harm
1. Indicted for minimum term two years, additional term two years
2. Fixed term two years concurrent
(appeals against severity of sentence were dismissed by the Court of Criminal Appeal Bankstown on 9/11/1998)
2/2/1998
Waverly Local Court
Escape/attempt to escape by prisoner from lawful custody
(212 days at large)
Fixed term of six months
(appeal against sentence dismissed by the Sydney District Court on 23/11/1998)
2/4/1998
Bankstown Local Court
Assault occasioning actual bodily harm
Imprisonment nine months
30/11/2000
Bankstown Local Court
Seven offences including
1. Goods in/on property reasonably suspected of being stolen
2. Custody of knife in a public place
1. Warrant to issue
2. Convicted s25(2) warrant to issue
25/1/2001
Fairfield Local Court
Common assault (two counts)
Bond s9, two years
13/9/2001
Burwood Local Court
1. Aggravated robbery with wounding
2. Carried in conveyance taken without consent of owner
1. Committed for trial
2. Committed for trial
21/6/2002
Campbelltown District Court
1. Aggravated robbery with wounding; cause grievous bodily harm
2. Be carried in conveyance taken without consent of owner
1. Imprisonment for eight years commencing on 16/2/2002 and concluding 15/2/2010, non-parole period with conditions five years and six months, release subject to supervision
2. Imprisonment 12 months commencing 16/2/2001 and concluding 15/2/2002
(On 9/3/2004 the Court of Criminal Appeal Bankstown summarily dismissed appeals lodged against the above convictions)
5. On 20 February 1996, Mr Ali was convicted of assault occasioning actual bodily harm and sentenced to a minimum term of imprisonment of 12 months with an additional term of three months (an appeal against the sentence being subsequently dismissed (S20)). On 2 July 1996, a delegate of the then Department of Immigration and Ethnic Affairs warned Mr Ali that he might be liable for deportation under s 200 of the Migration Act 1958 (“the Act”) (T4 p23).
6. On 26 July 1996, Mr Ali was convicted in the Sydney District Court of break, enter and steal in circumstances of aggravation and sentenced him to a minimum term of imprisonment of two years and six months, with an additional term of two years and six months (an appeal against this conviction being dismissed on 9 April 1997). On 27 January 1998, a delegate of the then Department of Immigration and Multicultural Affairs (“DIMA”) gave Mr Ali his second warning that he might be deported (T10 p37).
7. On 17 December 1997, the Liverpool District Court convicted Mr Ali of the offences of steal from person and assault occasioning actual bodily harm and sentenced him to a minimum term of two years with an additional term of two years on the first charge and a fixed term of two years imprisonment on the second charge (an appeal against these convictions being dismissed on 9 November 1998).
8. On 24 November 1998, an officer of the criminal deportation section of DIMA advised Mr Ali that his conviction on 26 July 1996 rendered him liable to deportation and stated that he intended to put his case before the Minister (T13 p40). On 10 March 1999, a case officer of the criminal deportation section of DIMA recommended that Mr Ali was liable for deportation and on 11 March 1999, that recommendation was supported by a delegate of the Minister of state responsible for the Act (T p57). On 3 April 1999, a deportation order was signed (T p6). By letter dated 15 April 1999, the deportation order was served on Mr Ali at the Goulburn Correctional Centre (T p7).
9. On 28 April 1999, Mr Ali lodged an application with the tribunal for a review of that decision. On 24 December 1999, a decision was delivered by Deputy President AM Blow OAM, QC, setting aside the decision under review and substituting a decision that Mr Ali not be deported in consequence of his conviction on 27 July 1996. On 21 January 2000, the then Minister for Immigration and Multicultural Affairs appealed to the Federal Court. The questions of law raised by the appeal were stated as follows:
(a)Whether the Tribunal erred in law by taking into account evidence that the applicant:
(i)had not committed offences of assault occasioning actual bodily harm …; and
(ii)had performed a lesser role in relation to an offence of stealing a motor vehicle …
in circumstances where this evidence was contrary to the findings of the sentencing court concerned and thereby impugned those convictions and/or sentences.
(b)Whether the Tribunal erred in law in that it failed to comply with its obligations under s 43(2B) of the Administrative Appeals Tribunal Act 1975.
10. On 29 September 2000, a single judge of the Federal Court, Branson J, ordered that the decision of Deputy President Blow be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and determined according to law, stating that the tribunal had erred in law in reaching its conclusion by failing to take into account a fact to which it was obliged in the circumstances to give significant weight.
11. On 21 June 2002, following the remittal of the matter to the tribunal, Mr Ali was charged with robbery with wounding and being carried in a conveyance knowing that the conveyance was taken without consent of the owner. He was sentenced to eight years and one year respectively and is currently serving his sentences in the Lithgow Correctional Centre.
12. At the remittal hearing, the applicant appeared in person and the respondent was represented by Dale Watson, solicitor, of the Australian Government Solicitor’s office. The evidence before the tribunal comprised the documents previously produced to the tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), including supplementary documents (“the S Documents”) (File No N1999/612) and additional supplementary documents produced in the present proceedings (“the AS Documents”), taken into evidence collectively as Exhibit R1, together with evidence tendered by the parties at the hearing. Both parties were also given the opportunity to lodge written submissions following the completion of the oral evidence. Oral evidence was given at the hearing by Mr Ali and by his mother Mrs Zarima Ali.
13. Between February 1998 and February 2004, while in custody, Mr Ali has had 64 charges recorded against him, including for assault and intimidation, the following of which have occurred since 2001 (AS p17):
Incident Date Offence
27/2/2001 Abusive language
13/3/2001 Abusive language
18/6/2001 Assaults
12/8/2001 Fail to comply supervision
23/8/2001 Unauthorised property
23/8/2001 Damage property
27/8/2001 Obstruct prison officer
11/9/2001 Fail attend muster
1/10/2001 Not comply routine
5/10/2001 Not comply routine
5/10/2001 Not comply prison officer
23/11/2001 Obstruct corrective officer
2/12/2001 Steal
1/1/2002 Behave threatening manner to person
3/1/2002 Possess/create prohibited good
6/2/2002 Conceal article use for escape
12/2/2002 Intimidation
25/10/2002 Enter other cells
7/11/2002 Fail to comply with corrective centre routine
20/4/2002 Disobey direction
18/5/2002 Disobey direction
22/9/2002 Disobey direction
7/11/2003 Fail to attend muster
4/2/2004 Disobey direction
26/2/2004 Intimidation
Applicable Legislation
14. Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 2 of the Act applies. Under s 201, the Minister may order the deportation of non-citizens who have been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for less than 10 years. Section 204(1) provides that any period during which the person was in prison is to be disregarded in calculating the length of time that the person has been in Australia as a permanent resident.
15. Mr Ali arrived in Australia 16 years ago, on 19 November 1987. His first deportable offence was committed on 8 September 1995, three years and six months after he gained permanent residence in Australia. He was charged with his second deportable office on 29 September 1995 after, according to s 204(1), again approximately three years and six months permanent residence. He was charged with his third deportable offence on 17 December 1997, approximately five years and nine months after gaining permanent residence.
16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the Regulations”. Subject to that, in these proceedings such a direction has the force of law.
17. On 21 December 1998, the Minister issued a general direction under s 499 of the Act, entitled “Australia’s Criminal Deportation Policy – Criminal Deportation under Section 200 of the Migration Act 1958” (Direction No 9). Direction No 9 states in paragraph 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.
18. The direction goes on to provide guidance as to the important factors which should be considered by a decision-maker when determining whether or not a person should be deported. This guidance will be discussed below in relation to the particular facts of Mr Ali’s case.
Issue
19. The issue for the tribunal to determine in this case is, therefore, whether Mr Ali should be deported from Australia by reason of his substantial criminal record.
Evidence
20. In his oral evidence the applicant acknowledged the seriousness of the offences for which he had been convicted. He did not, however, wish to say anything about his most serious conviction for aggravated robbery with wounding and being carried in a conveyance taken without the owner’s consent dated 17 February 2001. He said he was seeking legal advice on whether he could obtain leave to reinstate an earlier appeal in that matter which had been dismissed for want of prosecution. The other offences he committed after being released in 2000 mainly arose he said, from the one incident and were “not enough to stop me from helping my daughter”. But he admitted that he knew at the time of committing those offences that by his doing so at a time when he was under notice of deportation following the Federal Court remittal his daughter would be adversely affected.
21. He repeatedly maintained, however, that he was no longer a risk to society, and that his behaviour had changed, as was evidenced by the report of the program manager and the letter from the corrective services area manager dated 7 May 2004 (A1). When it was put to him that he had told the tribunal in 1999 that the shock of the deportation order would keep him on the “straight and narrow”, he replied that this was before he had undertaken the courses on anger management and other self improvement skills while in prison. He had undertaken some courses of that nature while in custody in 1998-1999, but said that the later ones were more beneficial and in considerably greater depth. The anger management course, he said, had proved very effective in the United Kingdom in leading offenders to understand the victim’s viewpoint. He conceded that during the year in which he was released he should have stuck at one of the jobs that were offered to him, as he now recognised that nothing comes easily in life.
22. His contact with his daughter Ericka now consisted of telephone calls, together with visits in person about every six to nine months. She now understood that her father was in jail, but he did not want the visits to become too frequent in case she should be adversely affected. He claimed, nevertheless, that he was involved in every major decision in her life through speaking to her and her mother on the telephone. He instanced that he would inquire how she was faring at school, how she was interacting with her mother and whether she should move from Revesby to Rose Hill. Ericka was now being home-schooled with a teacher who had only three other pupils in total, following incidents of bullying at her previous school. He acknowledged that he went to jail when she was aged only one year and that except for his period on the run in 1997, he had been in jail for most of her life. But he said that senior executives often have long separations from their children and he wanted her to know that he had not abandoned her. It was put to him that when his minimum sentence period expires in 2007, Ericka will be 13, by which time he would be unlikely to have much impact on her life. He replied that he would try to assert such an influence whether she sought it or not, that he was strict with her and knew that she would need guidance at that age. He would support Natalie’s efforts and would make it clear to Ericka that he had learned his lesson. He conceded that at the last AAT hearing, Natalie had said that if he committed any more offences she did not want anything more to do with him and would not want Ericka to see him. However, he said that she was upset at the time and that it was ridiculous to suggest that she would not wish him to have contact with Ericka any more.
23. Others who would be adversely affected by his deportation to Fiji, he said, were his mother, aunts, and his step-brother Wasim, aged 13. His mother and his aunt visited Fiji occasionally, but his mother had not done so lately.
24. He had given occasional sums of money to Natalie but not supported her, nor had he supported his mother or other family members. Ericka had been supported by social welfare benefits since birth.
25. On one occasion in 1997 he had committed a serious offence involving assault, robbery and wounding when he had just left Ericka after being out with her. He claimed that he did not commit the offence in front of her, but she was nevertheless present when he was held on the ground while the police were awaited, and became very distressed by the scene.
26. The applicant said that deportation would cause him severe hardship personally. Although he had some relations in Fiji he would not receive any support from them, or from his family in Australia. He could speak only broken Hindi but acknowledged that English is a leading official language in Fiji. Nevertheless, he said he had no idea what he would do in Fiji.
27. Mrs Ali, the applicant’s mother, said she would suffer emotional stress if the applicant were to go to Fiji because of lack of personal contact. Mrs Ali has one sister in Suva, who works as a radio announcer, but she did not think she could practicably ask her sister to help the applicant to become established. The family had lost their original home as it had been taken over by indigenous Fijians and he would initially have no accommodation to go to. She would try to send him money but thought he would find it hard to obtain employment. She would, however, do her best to keep in contact with him.
28. Mrs Ali did not have a great deal of personal contact with Ericka. She had tried to help her, and had given her sums of money, and had taken her to sporting fixtures and to the Easter show. Her main form of contact with Ericka, however, was by telephone calls about twice a month.
29. The respondent adduced no oral evidence.
30. After the hearing, and pursuant to a direction made at the hearing, the applicant lodged a number of written statements and statutory declarations. Some of these were from members of his extended family or persons otherwise associated with him. They included his mother, Mrs Ali, who had also given oral evidence, Natalie Ungaro, the mother of Mr Ali’s daughter Ericka, and Natalie’s partner, Robert Willatt. Others were from several of his uncles, Mohammed Dean, Abdul Hakim, Mohammed Janiff, Mohammed Salim and an uncle by marriage, Dr Michael Fairley. Others were from aunts, Shamshad Kumar, Dr Naushad Fairley and Mrs J Janiff. There were also statements from Mr Ali’s step-father, Sultan Buksh, and Mr Buksh’s sister Nasmin Buksh. Finally, there were statements from cousins, Shakheel Hakim, Jameel Ahmed, Mohammed Shahani, Mohammed Khan, Mohammed Shaheem and Maureen Janiff.
31. There was also a report on Mr Ali dated 14 October 2004 from a clinical psychologist, Dr Jane M Selby, together with a report from another clinical psychologist, Dr Christopher J Lennings dated 15 September 2004 relating to Ericka. The letter dated 7 September 2004 from Dr Michael Fairley, although offered in a personal capacity, also belongs in this category, as Dr Fairley is a child and family psychiatrist and his comments in part reflect that. “Shane is intelligent”, he writes, “When he was younger, he thought that he could outsmart people. For a time he did. Inevitably, he was caught. Maturity lagged behind ingenuity. At last, I think that he has changed his attitude”.
32. In her written submissions on behalf of the respondent, Ms Watson pointed out that of the persons who provided the above statements, the following also provided evidence to the tribunal at the earlier deportation hearing in 1999: Mrs Ali, Mr Buksh, Mrs Kumar, Dr Naushad Fairley and Natalie Ungaro. Their evidence, whether oral or by way of statutory declaration, in the earlier hearing was to the same effect as their evidence in these proceedings: that Mr Ali had offended because of his troubled childhood, especially his resentment at his mother’s re-marriage, but had now learned his lesson and should be given one more chance. He had a firm offer of employment that he could take up on his release. The evidence in the current proceedings provides no insights into why he re-offended within such a short time after being released and in such a serious and violent manner. There is no reference to any discussion with him as to why. Knowing that a further crime would increase the likelihood of deportation, with the inevitable consequences that would have for his daughter and his family, he nevertheless chose a more serious course of criminal conduct than before. The focus is entirely on the effect deportation would have on him, his daughter and his family, and there is no acknowledgement of the more immediate effect of the applicant’s imprisonment for those crimes.
33. Further, in the 1999 proceedings, Dr Naushad Fairley and Mrs Kumar in their statutory declarations, and Natalie Ungaro in her oral evidence, made it clear that they would not support him again if he re-offended. Nevertheless, they have done so, without offering any explanation for their change of attitude.
34. Dr Selby’s report recommends that the applicant be given the opportunity to continue his post-prison life in Australia, on the basis that he has demonstrated striking changes over the past two years and that his 2002 diagnosis of Personality Disorder with Anti-Social Traits is no longer apparent in any way. She says he is an intelligent young man in some turmoil, who does not deny the seriousness of the offences committed. There is no evidence from current reports or interviews, Dr Selby continues, of the characteristics that would support Dr Nielssen’s 2002 diagnosis of personality disorder. In particular, deceitfulness, irresponsibility and lack of remorse were among the personality disorder criteria that had been overcome.
35. It is not altogether clear how much time Dr Selby spent with Mr Ali; she notes having had one face-to-face interview with him, and telephone interviews between October 11th and 13th. More importantly, Dr Selby seems unaware of his consistent refusal to discuss, explain, account for or in any way accept responsibility for, his most serious crime, for which he is currently serving an eight year sentence. That is a highly significant feature of the present case, and I now turn to it in more detail.
36. The current appeal against deportation was remitted to the tribunal by the Federal Court on 29 September 2000 for re-hearing. On 21 June 2002, the applicant was sentenced to his current term of imprisonment. There ensued a series of directions hearings which resulted in the rehearing being adjourned several times on the ground that Mr Ali was pursuing an appeal against that conviction and sentence. The appeal was dismissed, however, for want of prosecution on 9 March 2004.
37. In his opening address at the hearing on 23 August 2004, Mr Ali said that he expected to receive counsel’s opinion on the possible reinstatement of the appeal within about two weeks.
38. In his oral evidence he said that he had retained the services of a barrister and solicitor who had advised him, in light of the possibility of reinstating the appeal, not to discuss his recent conviction at the rehearing before this tribunal. That seemed rather questionable advice to offer a man facing deportation, and Mr Ali did not name the barrister or the solicitor who had allegedly given it. The applicant was given 28 days to lodge his written submissions, partly in order to allow sufficient time for him to receive and consider any advice on the possibility and prospects of an application to reinstate the appeal.
39. In his written submissions dated 17 September 2004 he repeated his earlier assertion, stating that “From legal advice given to me by my solicitor looking into my appeal off [sic] my recent conviction, I can not comment about this offence”. He also went further and stated that the conviction “is under appeal”. Once again, no counsel or solicitor was named.
40. The respondent pointed out in her written submissions dated 9 November 2004 that no such appeal had been instituted and submitted that the applicant was simply attempting to avoid the issue.
41. The applicant’s submissions in reply dated 25 November 2004 opened with this promising sentence: “I will first deal with this matter of my recent conviction, as it is resonant throughout the respondents submissions”. What followed, however, was two paragraphs of irrelevancies and prevarication, concluding with the statement that “I have also provided this tribunal with the names of the solicitor and Barrister who are preparing the matter in question for the C.C.A.”. As was pointed out above, no names of a barrister or solicitor were provided, nor have they been to this day.
42. It is therefore obvious that the applicant’s narrative about a barrister, solicitor, legal advice and a pending appeal is a complete fabrication, presumably concocted to divert the tribunal’s attention from the applicant’s main offence and perhaps to stall for time. That the applicant would adopt and persist with this strategy squarely contradicts Dr Selby’s assertions about Mr Ali’s sense of responsibility, his remorse and his lack of deceitfulness. It rather confirms Dr Michael Fairley’s comment that the applicant “thought that he could outsmart people”, but not his optimistic conclusion that “At last, I think that he has changed his attitude”. It also evokes Dr Nielssen’s 2002 report wherein the psychiatrist notes that: ”Anti-social traits are thought to be enduring”.
43. The evidence of change, reform and rehabilitation (see below), not only from Mr Ali’s family but also from a social worker, a psychologist and prison administrators is however, too voluminous to be entirely dismissed. I accept that his training and rehabilitation programs while in custody have brought some positive changes in attitude and a corresponding reduction in the risk of recidivism. At the same time, however, that positive evidence is fundamentally undermined by the sustained pattern of deceitful and manipulative behaviour revealed by his continued reliance on a fabricated account of legal advice and a pending criminal appeal.
44. The report dated 15 September 2004 by the clinical psychologist, Dr Lennings is relevant to the question of the interests of the child. Dr Lennings interviewed Ericka, aged 10, for approximately one hour. He also interviewed her mother, Natalie Ungaro, and her aunt, Dr Naushad Fairley. All of the interviews took place on 10 September 2004. There was also a brief telephone interview with the applicant on 14 September 2004. Dr Lennings notes that the applicant’s contact with Ericka has mainly been by telephone as he has been in jail for most of her life, but he has spent about three years with her (though not living with her) when he was not in custody. He assessed Ericka as being of average intelligence but noted that she had experienced problems at school. She had been bullied and as a result had been in home-schooling this year. It was planned that she would resume mainstream schooling in 2005. She did not seem depressed or overly anxious, and while she was somewhat timid and over-sensitive, her psycho-social development did not seem particularly poor. She displayed a strong primary bond to her mother, though she felt a little on the outside of the family because Natalie Ungaro now has two additional children as a result of a later association. While Ericka shows signs of emotional vulnerability, Dr Lennings did not think that was necessarily the result of school bullying: “The hypothesis remains and is yet to be tested whether such difficulties might have been contributed to by the father’s incarceration … It is probable that such vulnerability is a product of what appears to have been family dysfunction on the part of both parents when Erica [sic] was young, and subsequent problems in maintaining a satisfactory relationship with the father because of his incarcerations”. He thought Ericka would experience a profound sense of loss if her father were deported, but given the strong support from her mother and her good relations with her step-siblings, “the absence of severe psychopathology indicates a potential for resilience”.
45. As the respondent pointed out, however, Dr Lennings seemed to be proceeding under the misapprehension that the applicant will be released or deported in the very near future, as he thought “the loss will occur at a difficult transition point for her, doubly so as she will be also making the move back into main-stream schooling next year … The risk is that it will also imperil her adjustment back into main school environments as her sensitivity is only likely to be heightened by her loss”. He concluded that “it seems the best interests of Erica [sic] lie in her being able to continue her relationship with her father”.
Application of the Law and Findings of Fact
46. As stated above, under s 201 of the Act, the Minister may order the deportation of a non-citizen who has been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than 10 years.
47. In making the deportation order dated 3 April 1999 (T p6), the respondent relied on Mr Ali’s conviction on 26 July 1996 of break enter and steal in circumstances of aggravation, for which he was sentenced to a minimum term of two years and six months imprisonment with an additional term of two years and six months. Evidence of that conviction appears in the T documents (T p74). At the time of the commission of this offence on 8 September 1995, Mr Ali had accumulated approximately three years and six months permanent residence (T p42). As the respondent noted in her submissions, except for the years when the applicant has been in custody, there has not been a year since 1991 when Mr Ali has not appeared before a court of law on criminal charges.
48. At issue is whether to exercise the discretion to deport Mr Ali. Like other decision-makers, I am to be guided by Direction No 9 in exercising this discretion. The two primary considerations to be considered in making a decision are set out in paragraph 6:
(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee the best interests of the child or children.
49. There are two aspects to community expectations noted in paragraph 8 of the Direction:
(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who currently commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
50. Paragraph 10 identifies three factors as 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;
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
51. In addition to the primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases. Paragraph 21 states that “it is appropriate that these matters be taken into account but given less weight than the primary considerations”. These matters include:
(a)the degree of hardship which may reasonably be expected to 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 (other than children whose best interests are a primary consideration).
Community Expectations: protection
52. Turning first to the protection of the Australian community, the first issue is the seriousness or nature of the crime. There is no question that the applicant has committed a series of very serious offences, for the latest of which he is currently imprisoned. In sentencing him on 21 June 2002 in respect of the charge of aggravated robbery with wounding for which he was imprisoned for eight years, Sorby J of the District Court Criminal jurisdiction, observed:
Mr Harris, who gave evidence, said he was on his knees trying to open the safe as ordered. The prisoner told the owner, that is Mr Harris, to hurry up and then turned and told the other robber to shoot Mr Harris in the leg. The other person did not discharge the gun and the prisoner in a deliberate act of gratuitous violence stabbed Mr Harris, who was doing everything to cooperate, in the upper arm, wounding him.
During the course of the robbery three patrons of the TAB were threatened with the firearm and forced to lay down on the floor. The other aggravating factors were that at that time of the offence the prisoner was on parole for aggravated break and enter and steal from a person, together with a section 9 bond for offences of assault and malicious damage.
These features of aggravation combine to make this objectively a very serious offence …
It is most fortunate for the victim, but also for the applicant, that Mr Ali’s confederate refused to shoot Mr Harris in the leg. The effects of a shotgun blast at that range would probably have led to Mr Ali receiving a substantially longer prison sentence than he did.
53. Many of his other convictions are also very serious, involving as they do repeated violence, stealing from the person, breaking and entering in company, car theft, dangerous driving and escapes from lawful custody. Their seriousness is evidenced either by their being listed in paragraph 11 of the direction or by the sentence imposed.
54. Despite Mr Ali’s contentions at this hearing and in previous hearings as to his guilt or innocence in relation to a number of his criminal offences, “the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested … by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT)”: Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at paragraph 42.
55. The second matter to consider as an aspect of community protection is the risk of recidivism (paragraph 13). I note that except for the years that Mr Ali has been imprisoned, there has not been one year since 1991 that he has not been before the courts on criminal charges, and indeed often more than once in any given year. I also note that during Mr Ali’s time in prison, he has had 64 breaches of discipline recorded against him, including multiple instances of assault and intimidation.
56. Direction No 9 requires the tribunal to give particular weight to three circumstances, relating to recidivism, the first being whether the person commits a further offence after having been warned previously about the risk of deportation (paragraph 13(a)). The applicant received his first warning of possible deportation on 2 July 1996. The warning appears to have had a minimal effect on his activities, since after that date he has been convicted of serious offences such as stealing from the person, assault occasioning actual bodily harm, escape from lawful custody, goods in custody, assault, maliciously destroying or damaging property, reckless driving, aggravated robbery with wounding and being carried on a conveyance taken without the consent of the owner. Especially striking is the fact that since the Federal Court remitted the matter to this tribunal on 29 September 2000, the applicant has been convicted of several other criminal offences, including his most serious violation, aggravated robbery with wounding, for which he was sentenced to eight years imprisonment. That these offences were perpetrated at a time when he knew that deportation was an imminent possibility is particularly telling. The Federal Court appeal and the remittal gave him a unique opportunity to prove that he had reformed, but he wasted it.
57. Secondly, paragraph 13(b) of Direction No 9 mandates that a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. That consideration plainly applies in the present case.
58. The third matter to be considered under paragraph 13 is the question of rehabilitation. The program manager at Lithgow Correctional Centre in a report dated 19 July 2004 stated that the offender has undertaken a number of programs directed at personal risk areas, such as problem solving, impulsivity, cognitive reasoning and interpersonal skills. He has completed the four modules of the personal effectiveness program and the “think first” program. The program manager comments on his high degree of motivation and his willingness to discuss his belief systems in order for them to be challenged. As a result, she believes that he has developed an insight into his offending and is now able to consider it from the perspective of the victims of crime. A sojourn at Goulburn Correctional Centre, where he was placed in the intensive case management program, appeared to have led to a reduction in the number of prison offences he has committed, especially those of a violent or threatening kind. While there has indeed been a reduction in the frequency of his prison offences, they have continued at a lower rate, and include one sentence for intimidation on 28 February 2004. Nevertheless, the corrective services area manager confirmed in May 2004 that there had been a marked improvement in his attitude (Exhibit A1).
59. His undertaking of useful courses while in prison and his claims that he has undergone a change of attitude should be viewed in light of the fact that he and members of his family made similar claims to the sentencing judges in 1996 and 1999. Again, before this tribunal in 1999 he offered similar assurances (Re Ali and Minister for Immigration and Multicultural Affairs [1999] AATA 1017 at paragraph 25). Yet the applicant went on to more serious law-breaking than ever. At the hearing he stressed that this time it is different, that he now understands that his earlier actions were wrong. He appeared to be sincere, but given the length of his criminal history, his regular breaching of parole conditions and his disregard of repeated warnings in the past, the possibility of recidivism is still real.
60. After the risk of recidivism the next matter to be considered as part of community protection is the question of deterrence, the possibility that deportation of this offender might dissuade other non-citizens from committing similar offences. In his written submissions in reply Mr Ali denied that deportation would have any deterrent effect on others, and suggested that it might have the opposite result, by conveying the message that there is no point in reform. He also relied on Re Pateland Minister for Immigration and Multicultural Affairs [2002] AATA 78 at paragraph 47, where Gray J had this to say:
The notion that persons in Fiji, or any other country but Australia, could be deterred from committing offences by the consideration that they would thereby become ineligible for visas to enter Australia is altogether too remote.
That case involved an older applicant who had committed a single offence of dishonesty in Fiji in the course of an otherwise blameless life. Gray J was making the point that the relevant deterrent effect related to the putative influence a negative decision in relation to a person who had committed offences in Australia (rather than overseas) might have on others contemplating criminal deviance in Australia.
61. From the 1960s to the 1980s there was a tendency in the administration of criminal law and in scholarly literature on that subject to discount the importance of the deterrence factor. The prominence at that time of determinist sociological theories of crime causation focused attention on the offender’s presumed unique motivation arising from exceptional social or family circumstances. The perceived failure of rehabilitative technologies and the increase in crime rates during the 1970s and 1980s, however, stimulated renewed interest in the analysis of the criminal decision-making process. Rational choice theory emerged.
According to this view, law-violating behaviour should be viewed as an event that occurs when an offender decides to risk violating the law after considering his or her own personal situation (need for money, personal values, learning experiences) and situational factors (how well a target is protected, how affluent the neighbourhood is, how efficient the local police happen to be ). Before choosing to commit a crime, the reasoning criminal evaluates the risk of apprehension, the seriousness of the expected punishment, the value of the criminal enterprise, and his or her need for criminal gain. (L Siegel, Criminology 4th Edition, West Publishing, 1992, p 131).
62. Further, the findings of research conducted in Australia aimed at testing rational choice theory “represent important opposition to the continuing prevalence of simplistic sociological analysis of imprisonment and recidivism, which is often based on ad hoc theorizing and limited empirical validation … The significance of the clearance rate (CLR), a measure of the probability of punishment, suggest a significant negative, deterrent effect for all crime categories considered” (P.M. Bodman, C. Maultby, “Crime, Punishment and Deterrence in Australia: A Further Empirical Investigation” (1977) 24 International Journal of Social Economics 884, 896; see also C. Buchanan, P. Hartley, Criminal Choice, Centre for Independent Studies, Sydney 1992; I. Ehrlich, “Participation in Illegitimate Activities: A Theoretical and Empirical Investigation” (1973) 81 Journal of Political Economy 521-65).
63. Under this newer approach, environmental factors such as unemployment, education and family background are not discounted, but they are balanced against the recognition that administering the law in a consistent way can produce an understanding that negative and disruptive behaviours will receive attention and sanction, and that factor will influence individual calculations about engaging in criminal deviance. Not all potential offenders are susceptible to such influences, but the numbers whose conduct does respond is sufficient to make rational choice models better predictors than earlier theories.
64. Giving due weight both to environmental factors and rational choice considerations, to fail to deport a foreign national with such an appalling criminal record as the applicant has, could lead potential offenders to conclude that Australian criminal and migration laws need not be given great weight in their calculations. Deterrence is thus a significant, though not decisive, factor under the heading of community protection in this case, besides having an undoubted and direct bearing on the expectations of the Australian community.
Community Expectations: removal of offenders
65. Paragraph 15 of Direction No 9 requires the tribunal to give effect to the community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community. This is required even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community: “Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect the person would be deported”.
66. In this context it is safe to say that the community would expect that a person who over a decade displays complete disregard for the nation’s laws, who has committed several serious crimes and crimes of violence and who has continued to offend in the face of repeated warnings and even despite the making of a deportation order against him, should be removed from the Australian community. Armed robbery, crimes involving on occasion serious and gratuitous violence, home invasion (not pursuant to an original plan, but continued as such), and repeated escapes from lawful custody permit no other conclusion. The sheer mass of convictions for serious offences over a long period would be abhorrent to the Australian people in itself.
The Best Interests of the Child
67. The second primary consideration under Direction No 9 to which I must have regard is the best interests of the child. Direction No 9 states that the decision-maker must determine the best interests of any children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee (paragraphs 16-20). The applicant has one child, Ericka, an Australian citizen now aged 10. Ericka is the offspring of an association with Natalie Ungaro which ceased when the applicant was aged 18. Ericka lives with her mother and her two children from another past relationship. The applicant last saw Ericka in late 2003. There is no evidence that Ericka would follow her father if he were to return to Fiji, and I proceed on the assumption that she would remain in Australia.
68. In a letter to the Immigration Department dated 11 January 1999 (T p87) written in response to an invitation to comment on a proposal to deport him, the applicant wrote:
I surport [sic] my daughter and I always have seen her and taken her out, when I was not in custody.
He expressed a proper solicitude about the possible effect on Ericka of her knowing that he was imprisoned while she was very young and said he had asked Natalie not to bring her to see him while he was in custody (T p92). Nevertheless, he subsequently went on to engage in more serious criminal activity than ever, thereby ensuring that he would remain in prison for a further substantial time and would be unable to play any significant part in Ericka’s upbringing. Now he sees her every six to nine months on prison visits. He said that he supported his daughter, but in fact he has never supported her financially, that role having devolved to the Australian taxpayer for her entire life to date. He says that on the telephone with Natalie he discusses all major developments affecting her upbringing, but he tends to exaggerate the part he has played in her life, and she in his. This is supported by implication in his statutory declaration of 23 July 2004 (Exhibit A2) lodged with his statement of facts and contentions. This is a detailed document comprising nine pages of single-spaced typing and setting out his grounds for resisting deportation. In that declaration, references to Ericka occupy a total of only three lines. Ericka has never lived with the applicant and contact with her has mainly been over the telephone. Those communications could continue if he were living in Fiji. It appears that members of his family do visit Fiji from time to time and those visits could also continue.
69. In 1997 he committed a serious offence of stealing from the person and occasioning actual bodily harm virtually in her presence. She saw him being held on the ground until police arrived and became distressed by the scene. The applicant would never intentionally harm Ericka, and one must presume that his continued presence in Australia would be of some benefit to her. Nevertheless, it could not be regarded as an unqualified benefit. The applicant is not a satisfactory role model for a young person. As Ericka enters adolescence his criminal background could become a major embarrassment and burden for her. His affection for her has not to date served to restrain him from engaging in serious law-breaking. Dr Lennings concluded that Ericka’s best interests lay in her being able to continue her relationship with her father and that his deportation would cause her a real sense of loss. His conclusion was, however, apparently based on the incorrect assumption that deportation would take place in the very near future, rather than in three years time at the minimum, when Ericka will be 13 and much less susceptible to paternal influence. Dr Lennings did note, on the other hand, that the applicant’s incarcerations and parental dysfunctionality may have contributed to her problems at school. He also notes that Ericka’s strong support from her mother, and her good relationships with her extended family are protective factors and that she has a potential for resilience.
70. The applicant contends that the welfare of his younger step-brother Wasim, aged 13, should also be considered under this heading. While paragraph 16 of Direction No 9 is plainly concerned with parent-child relationships more than any others, the language “or other close relationships” is broad enough to include siblings. The statements from Mr Ali’s family say that Wasim would suffer emotional hardship from separation from his step-brother and that he is having difficulty concentrating at school, though that seems to be due more to uncertainty about the outcome of the pending proceedings. Wasim will be at least 16 by the time the applicant returns to Fiji, and while one would expect him to experience some distress at that time, he should by then be able to cope with it. Further, he has had long periods of separation from his step-brother during his more formative years as a result of the applicant’s prison sentences. On balance I find that the best interests of the child do not outweigh the other primary consideration in this matter.
Other Considerations
71. Direction No 9 then requires the tribunal to consider, first, the degree of hardship that may be suffered by the potential deportee. The applicant has lived in Australia since the age of 11, and most of his family are here, including his mother. He would face some challenges in becoming established in Fiji, but as the department has pointed out, he has not succeeded in becoming established in Australia either. He has some extended family in Fiji and speaks “broken” Hindi. He is young, healthy, outwardly presentable and not addicted to drugs. He is articulate and resourceful, as was evidenced by the effective way in which he presented his own case at the hearing and in his written submissions. The pre-sentence report by the psychiatrist Dr Nielssen in 2002 remarked that the prisoner’s intelligence was “estimated to be in the high average range from his vocabulary and verbal fluency”. To date he has mainly used his talents for negative purposes, but if he has undergone a permanent change of heart and outlook, as he claims, he should be able to put them to good use in making a fresh start in Fiji. While in custody he has completed a one-year course in word processing technology and techniques, which should also stand him in good stead in becoming established. His family in Australia could give him modest financial help during that period.
72. The tribunal is also required to consider the degree of hardship to any Australian citizens or permanent residents. The evidence shows that his mother and various other family members would suffer emotional hardship if the applicant were deported. That is no doubt true, but it is also true that the main cause of anguish to his mother and other family members must have been his criminal career and his incarcerations. If he makes the best constructive use of his opportunities and talents after arriving in Fiji, the emotional pain to his family could be greatly reduced. I therefore find that the other considerations do not outweigh the case for deportation.
73. The decision under review should therefore be affirmed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 23 August 2004 (oral evidence only)
Date of Decision 7 January 2005Solicitor for the Applicant Self represented
Solicitor for the Respondent Ms D Watson, Australian Government Solicitor's office
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