Bajwa and Minister for Immigration and Multicultural Affairs

[2000] AATA 647

DECISION AND REASONS FOR DECISION [2000] AATA 647

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q97/1024

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      SURAJ BAJWA     
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date3 August 2000          

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – abhorrence of crime – assessment of the risk of recidivism – weight given to likely hardship.
Migration Act 1958 sec 200
Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713
Moore and Minister for Immigration and Multicultural Affairs Decision No. AAT390/2000 delivered 19 May 2000 

REASONS FOR DECISION

3 August 2000        Deputy President DP Breen, Presidential Member                  

1. This is a review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 20 August 1997 to deport the applicant under Section 200 of the Migration Act 1958.

2. The matter was heard by me on 20, 21 and 22 March 2000 and 25 and 26 May 2000.  Written submissions were provided to the Tribunal by the parties.  The applicant, Mr Suraj Bajwa, was represented by Mr K Smith of Counsel under the auspices of the Pro Bono Scheme.  The respondent Minister was represented by Ms S Hanstein and Ms P Chadderton, Departmental Advocates.

3. Oral evidence was presented at the hearing by the applicant; Mrs Ingeborg Bajwa; Father Brian Taylor, a Prison Chaplain; Mr Lindsay Pratt from the Chenrezig Institute; Mr Allan Stevenson, a Corrective Services Officer; Mr Rod Elsworth, Facilitator of the Preparation for Intervention Programme and Ms Susan Ross, a Buddhist Nun.  Medical evidence was provided by Doctors Donald Grant, William Kingswell and Gregory Wren.

4. The following documents were taken into evidence.

• Exhibit 1            "T" Documents

• Exhibit 1B         Supplementary "T" Documents

• Exhibit 2            Statement of Suraj Bajwa dated 20 March 2000

• Exhibit 3            Report of Dr D Grant dated 17.1.00

• Exhibit 4            Papers of the Applicant

• Exhibit 5            Transcripts of Police Interviews

• Exhibit 6            Bundle of documents from the Corrective Services file

• Exhibit 7            Diagram of locations of the offence in Cairns

• Exhibit 8            Report of Dr W Kingswell dated 22.11.99

• Exhibit 9            Supplementary report of Dr D Grant dated 3.2.00

• Exhibit 10          Curriculum Vitae of Dr D Grant

• Exhibit 11          Chenrezig Institute Brochure

• Exhibit 12          Report of Dr I Webb

• Exhibit 13          Document from Centrelink dated 15.3.00

• Exhibit 14          X-ray Report dated 9.2.00

1. Mr Bajwa immigrated to Australia from India with his wife in March 1994. In 1996 he was charged with, and convicted of, rape in Cairns. He was sentenced to 8 years imprisonment for that offence. At this time he had only been in Australia for 1 year 10 months and 2 days. It is this offence which brings Mr Bajwa within Section 200 of the Migration Act.

2. The applicable Ministerial Direction is Direction No 9 – General Direction – Criminal Deportation.  The Direction states that the primary considerations are the expectations of the Australian community, and, where an applicant is involved in a parental relationship with a child, the best interests of that child.  Although Mrs Bajwa is in a parental relationship with the grand-daughter, such a relationship has not been established with Mr Bajwa due to his incarceration.  Therefore, the latter consideration does not apply in this case.

3. There are two aspects to community expectations.  Firstly, the expectation that the community will be protected and not put at risk and, secondly, the expectation that non-citizens who commit and are convicted of crimes which are abhorrent to the Australian community will be removed from Australia.

4. Issues to be taken into account when evaluating the protection of the Australian community include the seriousness and nature of the offences committed by the applicant, their risk of recidivism and the deterrent effect of deportation on other non-citizens.  The applicant's criminal history consists of the following offences.

• Possession of a prohibited drug

• Driving whilst disqualified

• Resisting Police

• Unlawful assault

• Use of offensive language

• Behave in a disorderly manner

• Obstruct Police

• Breach bail undertakings

• Possession and supply of a dangerous drug

• Rape

1. The offences relating to the use of drugs and violence are serious crimes in themselves whilst the offence of rape is one which is clearly abhorrent to the Australian community.  The comments of the Sentencing Judge, Judge White, reflect the seriousness of this particular crime.  They were as follows:

   "It is an appalling thing when a young woman going about her business on the streets of Cairns is violently snatched from the street and raped.  It will not be tolerated and, as in the past, severe penalties must be imposed and a severe penalty will be imposed on you.
   On other occasions when I've dealt with such offences the offenders have at least had the decency to plead guilty so as not to further aggravate the commission of the offence by forcing the victim to relate it to a courtroom full of strangers.  And they have certainly not aggravated the emotional trauma to the victim by making such an absurd and insulting suggestion that you made in this case, that this young woman had simply walked up to a complete stranger in the street and seduced him.  You treated the complainant with complete contempt, complete disrespect and significant, although perhaps not extreme, violence – you were certainly as violent as was necessary for you to achieve your aim.  The sentence will reflect the seriousness of the offence."

1. During 1995 and at the start of 1996, the applicant had been drinking heavily and was taking anywhere up to 30 antidepressants a day.  It was the applicant's case that this was because he was not coping with the cultural differences in Australia and with the injuries his younger sister suffered in a car accident in 1994.  While this substance abuse may explain his criminal activity, it does not justify it and the difficulty involved in adjusting to the Australian way of life is only of marginal relevance in assessing the conduct itself.  Doctors Grant and Kingswell gave differing opinions as to the cause of Mr Bajwa's behaviour and the relevant risk of recidivism.

2. Dr Grant was of the view that in 1995 Mr Bajwa was suffering from a psychotic disorder in the form of a manic illness.  He believed that the applicant's offending behaviour was associated with psychiatric disturbances and abuse of alcohol and drugs.  However, Dr Grant assessed the risk of recidivism as low due to the applicant having addressed his substance abuse and the fact that he has not exhibited further manic psychoses since being in prison.  He rejected the diagnosis of anti-social personality due to lack of previous history or symptomatology whilst in prison.

3. Dr Kingswell assessed the applicant as having a medium to high risk of recidivism.  He was of the view that Mr Bajwa exhibited significant anti-social personality traits and this was evident in his alcohol and cannabis abuse and his disregard for the law.  Dr Kingswell also based his assessment on the general risk of recidivism of sex offenders.

4. Reports from people within the prison describe Mr Bajwa as polite, helpful, well-behaved and of great assistance to other prisoners.  Finally, in Mr Bajwa's exit report from the Preparation for Intervention Programme, the following observations were made:

   "While Mr Bajwa appears to have achieved some positive reduction in his level of cognitive distortion, and in his degree of justification of his offence, he is still not fully accepting of his accountability in relation to the offence."

1. The Tribunal prefers the view of Dr Grant, finding the diagnosis of Dr Kingswell to be superficial and lacking in an historical basis.  While the Tribunal also assesses the risk of recidivism as low, given the comments in the exit report, it remains a real risk.  In relation to the general deterrence deportation has on other non-citizens, this is not a case in which it would have any real significance.

2. The Australian community does expect to be protected from abhorrent crimes and that non-citizens who are convicted of such will be removed from Australia.  Given the nature of the crime, and particularly the observations made by the Sentencing Judge, this is clearly an abhorrent crime and one from which the Australian community would expect particular protection.  As such, the primary considerations are weighed against the applicant succeeding in this appeal.

3. The secondary considerations include the degree of hardship suffered by the applicant and by Australian citizens or permanent residents.

4. Mr Bajwa has a wife, stepdaughter and grand-daughter residing in Australia.  His mother, brother and younger sister reside in Canada.  If he were deported, he faces losing contact with all of them due to their difficulty in visiting him in India and the chance that he will not be permitted entry into Canada due to his criminal record.  However, he does have two sisters in India.  One is a successful doctor and the other is a barrister and both could offer him support.  It was the applicant's case that he would suffer hardship in India if people found out that he had been convicted of rape and deported as a result.  The stigma surrounding convicted rapists is a reality in both Australia and India, so this argument does not advance the applicant's case at all.

5. Mr Bajwa received a high-quality education in India and has a varied but positive work record there.  This should enable him to find employment again in that country.  He spent his formative years in India, he speaks the language and understands the culture which would assist his re-integration into that country.

6. The applicant referred the Tribunal to the case of Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 and urged the Tribunal to find that the hardship to be suffered on deportation was in the same category. As I explained in my decision of Moore and Minister for Immigration and Multicultural Affairs Decision No. AAT390/2000 earlier this year, the principle in Bustescu's case is simply that the Minister's Direction still preserved the Tribunal's discretion to find that the likely hardship outweighs even serious criminal conduct.  However, for that to occur the hardship under contemplation needs to be extreme, such as a real likelihood of persecution or the return to a country with which no real ties exist.  This is not the case here.  While Mr Bajwa will suffer some hardship in re-adjusting to life in India, which will be compounded if his wife does not go with him, it is not the type of hardship which would override the seriousness of his crime.

7. Mrs Bajwa is likely to suffer more significant hardship if Mr Bajwa is deported.  If she remains in Australia she will lose her relationship with her husband.  She is unlikely to travel with him to India due to her deteriorating health.  However, she does have her daughter and grand-daughter here in Australia and the support of her friends at the Chenrezig Institute.  If she does follow Mr Bajwa to India she will lose contact with her family with whom he shares a close bond.  While the Tribunal recognises that the deportation of the applicant would cause Mrs Bajwa significant hardship, and that this is an unfortunate situation, it does not, however, outweigh the expectations of the Australian community.

8. The applicant's stepdaughter and grand-daughter would suffer some hardship if the applicant were deported due to the stress placed on Mrs Bajwa.  The Chenrezig Institute would also suffer some hardship as a result of losing Mr Bajwa's interpreting services.  However, neither of these considerations outweigh the primary considerations in this case.

9. It is the Tribunal's finding that the applicant committed an abhorrent crime within the first 2 years of residing in Australia.  Although he has shown some signs of addressing his offending behaviour, there is still a low but real risk of recidivism.  He has limited ties to Australia and the hardship he would suffer upon being deported is mainly in relation to the breaking of those ties.  His wife will suffer hardship if he is deported but this does not outweigh the expectations of the Australian community.  For these reasons, the Tribunal affirms the decision under review.

   I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  20-22.3.00, 25 and 26.5.00
   Date of Decision  3.8.00      
   Counsel for the Applicant        Mr K Smith (Pro Bono Scheme)

   Solicitor for the Respondent    Ms S Hanstein and Ms P Chadderton, Departmental Advocates