Bax and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 336
•31 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 336
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/135
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID JOHN BAX Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date31 March 2004
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant not be deported. ..........(sgd S D Hotop)...............
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – deportation – applicant a New Zealand citizen – applicant had criminal history in New Zealand – applicant arrived in Australia in 1994 – applicant granted a Special Category visa on arrival – applicant convicted of 2 offences of assault occasioning bodily harm and sentenced to 16 months imprisonment for each offence (to be served concurrently) – applicant liable to deportation – Ministerial direction regarding criminal deportation – primary considerations and other relevant considerations – expectations of Australian community – protection of Australian community – seriousness and nature of applicant’s crimes – risk of recidivism – likelihood of deterrence – hardship to applicant – balancing of all relevant considerations does not favour deportation of applicant – deportation order set aside.
Migration Act 1958 (Cth) s200, s 201, s499
General Direction – Criminal Deportation – No 9
REASONS FOR DECISION
31 March 2004 Associate Professor S D Hotop, Deputy President Introduction
1. David John Bax (“the applicant”) has applied to the Tribunal for review of a deportation order made by the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) under s 200 of the Migration Act1958 (Cth) (“the Act”) on 12 October 2000.
2. At the hearing the applicant was represented by Mr M Rothstein, Solicitor, and the respondent was represented by Mr A Gerrard, a Lawyer employed by the Australian Government Solicitor. The Tribunal had before it the following documentary exhibits:
·Appeal Book (Vols 1 and 2, pp1-472) in the Matter No W294 of 2002 in the Federal Court of Australia, including the “T documents” (T1-T31) lodged with the Tribunal by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AR1);
·Proof of Evidence of David John Bax, dated 10 June 2003 (A1);
·Applicant’s Further Statement of Facts, dated 9 March 2004 (including Annexures A-F) (A2);
·Pay Advice for David John Bax from Contract Marine Coatings, dated 3 March 2004 (A3);
·letter from Mr A Blair, Marketing Manager, Access 31 to Mr D Bax, dated 9 March 2004 (A4);
·report of Ms L W Coxon, Clinical and Forensic Psychologist, dated 16 September 2003, and attached Curriculum Vitae (A5).
Oral evidence was given by the applicant and by Ms L W Coxon.
Factual Background
3. The relevant background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the material before it, are as follows.
4. The applicant was born in New Zealand on 26 October 1958 and is a New Zealand citizen.
5. The applicant first arrived in Australia on 25 September 1994. Upon his arrival the applicant completed an “Incoming Passenger Card” on which he gave an affirmative answer to the question: “Have you any criminal conviction/s for which the sentence/s (whether served or not) totalled 12 months imprisonment or more?”. The applicant was, nevertheless, on 25 September 1994, granted a Special Category visa allowing him to remain in Australia.
6. Prior to his arrival in Australia the applicant had the following history of criminal convictions in New Zealand:
Date of offence Offence Sentence/Outcome 09.10.76
Driving in a dangerous manner
$120 fine; disqualified from driving for 9 months
06.01.77
Driving in a dangerous manner
$125 fine; disqualified from driving for 1 year
08.02.77
Disorderly behaviour – likely to cause violence
64 hours community work; probation for 1 year and 6 months
27.11.85
Cultivate cannabis
Fine $750
24.06.88
Licensed person with excess blood alcohol level (0163)
$350 fine; disqualified from driving for 1 year
25.09.90
Social welfare fraud
Reparation of $4,615.45; non resident PD 3 months
12.07.93
Driving with excess blood alcohol content (0147)
$750 fine; disqualified from driving 6 months
08.10.93
Male assaults female (manually)
4 months imprisonment
08.10.93
Possess offensive weapon (other)
2 months imprisonment
22.07.94
Common assault (manually)
Sentence if call 1 year (ie suspended sentence).
7. Since his arrival in Australia the applicant’s history of criminal convictions in Australia is as follows:
Date of offence
Offence
Sentence/Outcome
28.03.98
Count 1: Assault occasioning bodily harm
16 months imprisonment (concurrent with Count 2)
28.03.98
Count 2: Assault occasioning bodily harm
16 months imprisonment (concurrent with Count 1)
01.02.99
Refused breath test
Motor driver’s licence disqualified for 6 months, and $800 fine
01.02.99
False name and address
$100 fine
01.02.99
No motor driver’s licence
$75 fine
01.02.99
Refuse name and/or address
$100 fine.
8. The applicant was, following a guilty plea, convicted of the abovementioned offences of assault occasioning bodily harm, and the sentences of 16 months imprisonment (to be served concurrently) were imposed upon him, on 19 August 1999. In passing sentence Muller DCJ described the “quite vicious” and “cowardly” nature of those assaults and the circumstances in which they were perpetrated, and said that those offences were so serious as to warrant a custodial sentence. The applicant was made eligible for parole.
9. The applicant was released on parole on or about 27 January 2000.
10. The applicant‘s conviction and sentencing in respect of the abovementioned offences of assault occasioning bodily harm on 19 August 1999 rendered him liable, pursuant to s 201 of the Act, to deportation under s 200 of the Act.
11. On 12 October 2000 the respondent made an order, under s 200 of the Act, that the applicant be deported from Australia.
12. On 13 November 2000 the applicant lodged with the Tribunal an application for review of the respondent’s decision, dated 12 October 2000, to order the applicant’s deportation.
13. On 29 October 2001 the Tribunal made a decision affirming the respondent’s decision to order the applicant’s deportation.
14. On 18 September 2002 the Federal Court of Australia dismissed an application by the applicant under s 39B of the Judiciary Act1903 (Cth) whereby he had sought prerogative relief in respect of the Tribunal’s decision of 29 October 2001.
15. On 27 March 2003 the Full Court of the Federal Court of Australia upheld an appeal by the applicant against the Court’s judgment of 18 September 2002 and ordered that the Tribunal’s decision of 29 October 2001 be quashed and that the applicant’s application for review be remitted to the Tribunal (differently constituted) for determination in accordance with the law.
The Applicant’s Evidence
16. The applicant tendered in evidence, and verified the contents of, 2 proofs of evidence which had previously been filed and served in this matter. The contents of the first proof of evidence (undated) are as follows:
“APPROX. DATE
EVENT
26 October 1958
I was born in Lower Hutt, New Zealand
Family
My parents’ names are John and Glenys BaxI have a younger brother, Nigel and a sister, Michelle.
I have had no contact with my parents or my siblings since I was 14 years old (since approx. 1972). I do not know where they are now or whether they are still alive.
1958 - 1974
1965 - 1967
1965 - 1972
1972
Childhood
I remember that there was a lot of domestic violence in our household. My Father would beat up my Mother and also beat up my brother and I.My parents separated when I was between 7 and 9 years old. I had to live with my maternal grandmother. My brother and sister had to live with other relatives.
Until 1972, I would live variously at home with my parents and with my grandmother.
My Mother’s younger brother died in a motor bike accident. My mother went into a deep depression. From then on, our family structure broke down again. I went to live with at (sic) my grandmother’s more permanently but by then I was living my own life and looking after myself. From then on, I did not see my parents or siblings again.
1974 - 1978
1975 - 1976
I began an apprenticeship in boat building and joinery at Lower Hutt. This took 4 years to complete. After that, I did boat building and joinery for another year (i.e. 5 and a half years in total).
I was living with some flatmates at the time.I started going out with Vicki Stevenson
9 October 1976
6 January 1977
8 February 1977
Offence of Dangerous Driving
My flatmates and I had gone fishing in Wellington. I was charged for exceeding the speed limit and failing to indicate. I was fined $120 and disqualified from driving for 9 months.
Offence of Dangerous Driving
I was coming home from the pub and was charged for exceeding the speed limit and fined $125 and disqualified from driving for 1 year.Offence of Disorderly Behaviour
At the time there was tension between us and the Islanders (Tongans and Samoans). Some Islanders were drinking in our flat when they started smashing some bottles. We got in a fight and they left only to return and throw rocks at our flat. The Islanders were arrested. Later that morning, around 3am, we went to a hamburger shop down the street and were arrested for beaching the curfew. I was sentenced to 64 hours community service and put on probation for 1 year and 6 months.1978
I got married to Vicki Stevenson. I also started working in the cottage building industry.
A few months later, towards the end of 1978, we moved to Queenstown from Lower Hutt.1979-1983
1981
When I got to Queenstown, I worked for a local builder for about 6 months. I then left and started up Queenstown Contracting, contracting myself out to various builders.
A few months after that, I bought a floor sanding plant which became part of Queenstown Contracting. Queenstown Contracting was also exclusively subcontracted by a kit home company.Vicki had an affair with one of our neighbours and this put a lot of strain on our relationship.
1983
1984
Vicki convinced me that things would be better if we moved up closer to her parents in Pitua. So I sold my business and moved to Pitua, where I made a living driving milk tankers.
About 6 months after we moved to Pitua, Vicki again had an affair and my marriage broke down. We were divorced and I have not seen Vicki or the two children since 1984. …
1984 -1985 I found a job as a foreman in the cottage building industry. 1985
27 November 1985
To get away from everything, I moved to Greymouth where I worked on and off on fishing boats.
Offence of Cultivating Cannabis
I stayed with some friends who were smoking marijuana and who cultivated cannabis. I was pulled over by the police in my car where they found marijuana and some equipment. I was charged with cultivating cannabis and fined $750.1985 -1990
24 June 1988
Towards the end of 1985, I moved to Christchurch where I worked on and off on fishing boats.
During this time, I was also moving between Christchurch and Nelson.Offence of Excessive Alcohol Level
I was driving home one night and was pulled over for being over the blood alcohol limit. I was fined $350 and disqualified from driving for 1 year.
February 1990
25 September 1990
12 July 1993
8 October 1993
8 October 1993
22 July 1994
I settled in Nelson which is a major fishing town where I worked in various fishing jobs.
Offence of Social Welfare Fraud
When I first arrived in Nelson, I applied for the dole. Dole forms used to be lodged every 12 weeks. I had been called out to sea and forgotten all about the dole, which I continued to receive. I was charged with social welfare fraud for which I had to make reparation in the amount of $4,615.45.Offence of Excessive Blood Alcohol
I was driving home from the pub and was pulled over by police for being over the blood alcohol limit. I was fined $750 and disqualified from driving for 6 months.Offence of Male Assaults Female
I was going out with a girl called Monique at the time. We were at the pub after work when she told me that she was sleeping with my best friend. I said I knew about what was going on and she became furious. She broke a glass and shoved the jagged end in my face. When she was about to strike me again, I pushed her away and she fell on her back. The police charged me with assault and I was sentenced to 4 months imprisonment.Offence of Possessing Offensive Weapon
During the same incident, I was carrying a fishing knife I used for work on my belt. I had gone to the pub from work and had not changed. When the police arrested me, they found the knife on me and charged me with possessing an offensive weapon. I was sentenced to 2 months imprisonment, although I did not ever use the knife on Monique or threaten anyone with it.Offence of Common Assault
I was at a nightclub where a person was trying to steal my car. I pulled him out and we got into a fight. I was given a 1 year suspended sentence.25 September 1994 I arrived in Hobart on the Santo Rocco. I remained based in Hobart for 4-6 months but working on various ships. When I arrived in Australia, I made a full disclosure of my previous convictions. 1995 -1997
28 March 1998
May - June 1998
I moved to Port Lincoln and Portland in South Australia where I worked in the fishing industry.
I then came to WA where I lived with friends in a caravan park in South Fremantle.
I went up to Darwin where I working (sic) in prawning for around 6 months.
I then returned to Fremantle where I met Linda... During that time, I worked for a boat builder.
Linda then moved in with me in a house we rented in Winthrop. Not long after that, I was offered a job from the Seamen’s Union to work out at sea for about 6 months.
When I returned from sea, Linda had left me.
I then got a job cleaning chemical drums. This lasted for about 6 months. Sometime towards the end of that period, Linda and I got back together and we moved into a flat.
I then started work as a bosun on a boat for 6 months. Linda also worked on the boat.
Offence of Assault Occasioning Bodily Harm
A few weeks before the incident, Linda had left me. During the period of our relationship, she had spent money from my bank account and even forged my signature on DSS forms whilst I was out at sea.During the time following the end of our relationship, Linda and her group of friends would harass me in the pub, to the extent that I had gotten a restraining order against one of them.
I admit the assaults and I pleaded guilty. I do not make any excuses for my behaviour. I know now it is unacceptable and cannot justify my behaviour. I was very angry but I know I should not have done what I did. I am sorry.
I was then put into Casuarina Prison pending trial for about 2 months.
June 1998 I was released on bail from Casuarina Prison with the support of a police officer, Mr Jamie Stewart. During the time of my release, I was subject to specific conditions, which were to report on Mondays, Wednesdays and Fridays, a curfew and a home base. I adhered to these conditions until the time of the trial. October 1998 - 18 March 1999 I got a job at Casa Doors installing roller doors for about 6 months. Owen and Irene Aust, the proprietors, had to terminate my job as they no longer required a full time installer due to a restructure of the business. 19 August 1999 At the trial, I pleaded guilty to the assault charges. I was sentenced to 16 months imprisonment and taken to Hakea Prison. 19 August 1999 - 27 January 2000
October 1999
November 1999
Whilst in prison, I was employed in the Autoshop where I worked without the need for supervision. I was never subject to any disciplinary charges and became eligible for placement in the highest privilege level.
I completed an anger management course called STAC (Skills Training for Aggression Control).
I was made a trustee (sic) at the East Perth Lock-up due to my exemplary behaviour and minimum security assessment.
On one occasion, I was allowed to return from Royal Perth Hospital to the Lock-up (following treatment of a bee-sting) without escort. The officers trusted me and I gave them my word.
27 January 2000 I was released from prison on parole. February 2000
April 2000
June 2000
7 July 2000
September 2000
I met Gisele … and we started going out.
I moved in with Gisele and her two daughters …
I worked in a floor sanding place and also at Vogue Spares in Osborne Park.I was introduced to Jane … who was the Principal of [a school]. We had come up with a program where I would teach students after school to manufacture sofas which they could sell. The idea was to use the school’s facilities after school hours as a fund raising exercise for the school. Unfortunately, the program was never implemented because of my detention by the Immigration Department.
I completed my parole.
I began working for Mike Jones at the Wood Floor Shop until I was detained by the Immigration Department.
8 November - 22 December 2000 I was detained by the Immigration Department. On my release, I was subject to a weekly reporting condition, which I fulfilled. February 2001 I began working at Solahart and also as a cook in a hotel. On the weekend, I would do house renovation work. This lasted for about 3 weeks. 19 February 2001 I left Gisele. My period in detention had led to a lot of stress on our relationship.
I stayed in the Swan Hotel from this time until end of May 2001.
March – May 2001 I worked as a floor sander with Euro Floor Sanding for a couple of months. End of May 2001 Mark Finnigan offered to let me stay in his house for two months. Mid June 2001 I moved out to 37 Farley Way, Bayswater. I worked in a marketing job for a while. July 2001
For about 3 weeks, I worked down in Pinjarra with Ramtech. I continued to report to the Immigration Department by phone. Mid August 2001 I began working for a concrete pool builder in Claremont. End of August 2001 – October 2001 I stopped working at the pool company and landed a job in floor sanding. I am due to begin a boat building job next Monday 22 October 2001 and intend to sand floors in my free time. I intend to build up a reputation in floor sanding start a floor sanding business like I did in Queenstown.” (Exhibit AR1, pp 121-126). The contents of the applicant’s second proof of evidence, dated 10 June 2003, are as follows:
“…
3I was born on 26 October 1958 in Lower Hutt, new Zealand. I am presently 44 years old.
4I first arrived in Australia on 25 September 1994 on the Santo Rocco. Accordingly, I have lived in Australia for nearly 9 years.
5I refer to my previous Proof filed with the Administrative Appeals Tribunal on 18 October 2001.
6I was released from prison on 27 January 2000.
7Following my release from prison, I was involved in a relationship with Gisele … This relationship lasted for nearly a year. My period of detention at the Perth Immigration Detention Centre placed a lot of stress on our relationship which eventually led to its breakdown.
8Even before my release from prison, I made the choice to put my life back on track and to move in a positive direction. I cooperated with prison authorities and was eventually made a Trustee (sic) at the East Perth Lock-up.
9In or about June 2000, I was introduced to Jane … who was a friend of Gisele’s. She was also a [school] Principal ….
10During a conversation with Jane, she told me that her school was in financial difficulties and that they were short of funds to purchase things such as computers. She was also concerned that the school was being tagged by graffiti after school hours.
11During that conversation, she also mentioned that the school had a disused wood work shop.
12At that time, I was thinking of starting up my own business, which I intended to call the Fat Boy Couch Company. As a boat builder, I had learnt to build different parts of a boat including the furniture inside. I decided that I would use that skill to manufacture couches.
13After speaking with her for a while, Jane proposed that I could use the woodwork workshop to build some couches in conjunction with the students.
14We had planned that I would build the first couple of couches and then I would teach the students to build their own couches that they could sell. I would supply my time, expertise and the necessary materials. The school would receive half of the profit for each sofa sold.
15This would have the effect of having some people on school grounds after school hours to deter the taggers from vandalising the school.
16I spent about three months planning the project, including meeting with some of the teachers of the school. However, the project did not go ahead as I was subsequently put into the Immigration Detention Centre.
17Following my release from Detention and the breakdown of my relationship with Gisele, I held down various short term jobs which did not last long. Part of the difficulty was that I had the uncertainty of deportation proceedings looming over me.
18In or about June 2001, I put my name down with a sawmilling company called Pinetec. I asked them to contact me should a position become available.
19In my previous proof I stated that I was going to begin a boat building job on 22 October 2001. However, I was unsuccessful in getting the job. Although I was short-listed, the job went to someone else because they were able to provide their own tools.
20About 3 weeks to a month after that, I found a job with Steven Ruberi at Ruberi Joinery in Malaga as a joiner.
21I was working at Ruberi’s as a contractor as and when required. This involved me working most days of the week at Ruberi’s. … My only concern with that job was that there was no certainty as to my future there and my income depended on the availability of work.
22During this time, I was also doing some floor sanding on the side. This would involve me being hired by customers who would provide their own equipment. They would pay me for the time spent in sanding their floors.
23I was sanding about one house every five or six weeks. The floor sanding market was not particularly good at that point in time and I could not do this as a full time business.
24Meanwhile, I continued to keep in contact with Pinetec in case a position became available.
25Pinetec contacted me in or about March 2002 to advise that a position of joinist/machinist had become available. Accordingly, I stopped working for Ruberi’s to start at Pinetec. This was a stable employment environment for me as it was a permanent, full time position.
26I have now been with Pinetec from March 2002 to the present, a period of 14 months. I was recently given a pay rise and a promotion.
27I am also currently involved in community work as a volunteer with Access 31 Television.
28I first came into contact with Fiona Beer from Access 31 after my relationship with Gisele broke down.
29I then was on the dole for a couple of months. An officer at Centrelink put me on the work for the dole program, requiring me to do work at Access 31.
30My work there included queuing tapes and programs. I enjoyed working at Access 31 and saw the potential there for me to make a positive contribution to the community. I began taking an interest in the production side of things.
31Even after I stopped receiving the dole, I continued to volunteer at Access 31.
32However, when I began working at Pinetec, because of my financial situation and the need to work longer hours, I wound down my work with Access 31.
33Once I had established myself again, I no longer needed to work on Saturdays. I sought out Fiona Beer and volunteered to work on Saturdays.
34Although, I had first been introduced to Access 31 through Centrelink, I went back on my own accord and have since worked my way up to becoming a floor manager and presentation co-ordinator. …
35This is a trusted position and I am usually down at the Access 31 studios by myself from morning until about 5:00 pm on Saturdays.
36I am also involved in training junior volunteers who are coming starting (sic) with Access 31.
37My intention is to eventually go into production and to own my own production company. In particular, I would like to produce a news and current affairs with a focus on New Zealand. I have noticed that on all the TV stations, this is one area that has not received enough attention.
38I intend to contribute to the community through this means by bridging the gap between Australians and New Zealanders and to give both Australians and New Zealanders a better understanding of each other.
39From my previous experiences and the mistakes I have made in the past, I intend to also make programs that focus on current community issues so that people will be educated on these issues.
40The production company I intend to start will look at issues such as homeless people, domestic violence and a whole range of other social issues so that the Australian community is aware of them.
41After leaving Gisele, I did spend some time on the streets and this has helped me to identity with the homeless people. Accordingly, it is my intention to bring some of the issues regarding homeless people to the attention of the Australian people and to perhaps move them to action and to help the homeless people more.
42In or about April 2003, I signed up with the Salvation Army to work with the homeless people. I have yet to start with the Salvation Army, but I will be doing whatever they ask me to do with the homeless people including feeding them and spending time with them.
43I have also started to look at building up the Fat Boy Couch Company. I have begun building the couches but I have not taken it any further because of my current visa situation. I have looked at the possibility of arranging with two particular retailers to display my couches.
44If my visa situation is resolved in my favour, I intend to get my couch business in full swing. The profits made from the Couch Company would help me to eventually set up my production company.
45Everything in my life is now moving in a positive direction and I have many avenues which I can pursue and make a positive contribution. I am now just waiting for the visa situation to be resolved and then I can get on with my life.
46As to the things that have occurred in the past, I am not proud of them and admit that those were foolish things that I did. However, I made a conscious decision to take a positive direction and never want to do anything that could result in spending time in jail. I have consciously removed myself from all the elements of my past, such as the people I used to associate with, excessive drinking and so forth, so that the things which happened in my past will never happen again.
47I had to endure a lot because of all the hard knocks that life has dealt me. I believe that I am wiser and more experienced and hope to use my experience for the benefit of others.”
(Exhibit A1)
17. The applicant also tendered at the hearing, without objection by the respondent, a document headed “Applicant’s Further Statement of Facts”, dated 9 March 2004. The contents of that document, which were also verified by the applicant, are as follows:
“1. Apart from his regular employment Applicant has for some years sought to realise 2 of his aspirations. The aspirations are:
(a) to start up a couch manufacturing business; and
(b) to be involved in the television industry.
Couch Manufacturing Business
2.This has been an abiding interest for some time… In or about October 2003 it was brought to Applicant’s attention that certain premises at 310-312 William Street, Northbridge (‘the Business Premises’) were available for lease on reasonable terms and conditions.
3.Applicant made appropriate enquiries and noted that the downstairs of the premises lent themselves to a couch/sofa manufacturing facility and the upstairs had the potential for a mini-tv production facility.
4.As stated above Applicant has been constrained by lack of finance. However, Applicant ‘took the plunge’ and during November/December 2003 committed himself to a lease of the Business Premises with the East Perth Re-development Authority. Annexure A hereto is a copy of the Lease plus covering letter from Knight Frank confirming that the Lease has been signed and stamped.
5.Applicant has thus far manufactured 1 couch which has been contracted to be leased to the Penthouse Nightclub at $100.00 per month for 1 year.
6.The second couch is to be installed in the foyer of the Access 31 television station with which Applicant has been working for the last number of years in a voluntary capacity and details of which are referred to hereunder.
7.Applicant has retained the services of Ian Hawkins to assist him with manufacture and sales.
8.Commitments have been obtained from the Esky Bar and the Fuel Bar to lease couches from Applicant. Annexure B hereto is a copy of the leather label that is attached to each couch.
9.The name of the business is Fatboy Couch Company. Applicant is in the process of registering the name with the requisite State Government Department.
10.Applicant has applied for and been granted a credit facility of $10,000.00 to enable him to acquire additional equipment for the business. At this stage the equipment is minimal as he is limited by his budget.
11.In consideration for supplying the 1 couch to Access 31 for their foyer and in due course another elsewhere in the studio it has been agreed that he will receive a certain amount of free advertising to lift the profile of the couch business. Applicant will be able to produce his own advertisements.
Access 31
12.Access 31 is a community based television statement (sic). He has been working at the station on a voluntary basis since November 2001 i.e. approximately 2 ½ years. Refer in this regard to the letter dated 17 April 2003 being Annexure C hereto. Refer also to the Certificate of Appreciation dated 7 August 2003 being Annexure D…
13.Applicant’s primary involvement is from 9am to 5pm on each Saturday. The studio’s address is at 265 Great Eastern Highway, Perth.
14.Duties include running the station on Saturdays which includes putting shows to air and ensuring that each of the approximately 4 people who man the station on Saturdays carries out their relevant duties.
15.Part of the training that he gives to new volunteers is presentation of the weather and generally how to put the station to air.
16.Applicant has been involved in a number of shows which are regularly presented by Access 31. Some of them are as follows:
16.1 Floor manager for ‘Sweet and Sour’. For example, the next screening should be Tuesday 16 March 2004. Look out for the credits where Applicant’s name of ‘Baxie’ is described as the floor manager.
16.2 The weekly ‘British Soccer Show’. The credits will include ‘Baxie’ as cameraman. This is screened between 4 and 5pm on each Saturday.
16.3 ‘Community Cop’. This is a community advertisement which was put together by Applicant together with another member of the Access 31 volunteer staff. HBF are the sponsor. The advertisement was shot at Applicant’s residence with the cooperation of local police. Applicant is in the advertisement itself. Applicant’s home is leased by the Applicant … . A copy of the Lease is attached at Annexure E.
16.4 ‘Bulls and All’. Applicant has been invited to work on it together with the current Executive Producer. At present the show is produced in packaged form but it is intended to produce it live in the studio.
16.5 ‘Bunbury Speedway and Nascar’. Applicant has worked with Tim Blake the Executive Producer in the past on Monday nights. From time to time Applicant is still involved with the show although no longer permanently.
16.6 ‘The Bike Show’. This is a proposed new show conceived by Applicant to deal with motorbikes, motorbike racing, panel shows concerning motorbikes etc. The concept has been formulated but the show has yet to get off the ground.
17.Access 31 is a free-to-air service for the Perth metropolitan area providing community based televised products. In this regard attached marked Annexure F is a bundle of information concerning Access 31 detailing the educational and communal work carried out by it.” (Annexures omitted)
(Exhibit A2)
18. In his oral evidence the applicant said that he voluntarily ceased his employment with Pinetec because the Pinetec sawmill was to be relocated in Bunbury, and he shortly afterwards obtained employment with Contract Marine Coatings on a “permanent casual” basis at a higher rate of pay than he was receiving when employed by Pinetec. He tendered in evidence his first Pay Advice slip from Contract Marine Coatings which indicated that he had worked a total of 55.5 hours in the fortnight ending on 3 March 2004 at an hourly rate of $20.00 (Exhibit A3). He said that at Pinetec his hourly rate was $15.50 but that, as a supervisor at Contract Marine Coatings, he can expect to earn $22.00 - $25.00 per hour in the future. As regards his recently-established couch manufacturing business, he tendered in evidence a letter dated 9 March 2004 from the Marketing Manager of Access 31 confirming the arrangement referred to in para 11 of the “Applicant’s Further Statement of Facts” (see paragraph 17 above) whereby he is to supply 2 couches to Access 31 in return for advertising of his business on that television station (Exhibit A4).
19. In cross-examination the applicant said that, although he had stated in para 42 of his second proof of evidence dated 10 June 2003 (see paragraph 16 above) that he had signed up to work with the Salvation Army, he could not proceed to work for them because he needed “a police clearance and a federal clearance”. He added, however, that he keeps in touch with Salvation Army officers and that he intends eventually to set up a production company and, with the skills he has acquired from working at Access 31 and with the assistance of the Salvation Army, to make television documentaries and other programmes about the plight of underprivileged people in Perth. Asked why he cold not engage in these kinds of enterprises in New Zealand, he said that there are “no opportunities” and “no work” in New Zealand. As regards the incident on 28 March 1998 which resulted in his being convicted of the 2 deportable offences of assault occasioning bodily harm, the applicant gave an account of that incident which was much less serious than that described by the sentencing judge. He claimed that, on that occasion, he had not punched his former de facto partner but had grabbed her by the arm and pushed her onto a couch, and that bruises on her body were the result of a fight with her cousin 3 days earlier. [The Tribunal notes that a similar claim was made by the applicant’s (then) solicitor on his behalf in a submission to the sentencing judge – see Exhibit AR1, pp 282, 285.] He acknowledged, however, that he had pleaded guilty to those offences but said that he had done so on the advice of his (then) solicitor to the effect that, if he pleaded guilty, he would not receive a custodial sentence. The applicant reiterated, nevertheless, that he felt remorse and was sorry for what he had done, and that he had since apologised to his former partner and there was now no animosity between them.
The Evidence of Leonie Coxon
20. Ms Coxon is a Clinical and Forensic Psychologist who has been in private practice as such since October 1985 and, during the last 10 years, has had considerable experience in assessing offenders and their risk of recidivism. Ms Coxon confirmed that she had prepared a report, dated 16 September 2003, regarding the applicant and she verified the contents of that report. The contents of that report, which was tendered in evidence by the applicant, are as follows:
“…
I saw Mr Bax on 9th September 2003 for a 4 hour interview and assessment session.
This report is based on the following:
Psychometric Assessment of Mr Bax’s emotional state
Personality Profile
Risk Assessment
Perusal of Documents forwarded to me including:
□ Chronology and Proof of Mr Bax
□ Two Sentence Planning Reports issued by the Ministry of Justice Offender
Management System, Canning Vale Prison
□ Proof of Evidence of David John Bax
□ Applicant’s Statement of Facts and Contentions
HISTORY
Mr Bax reported that he grew up in a violent home environment. He said his father was a heavy drinker and frequently assaulted his mother. His mother left the relationship when Mr Bax was 7 or 8 years old and he went to live with his maternal grandparents. His parents were briefly re-united but split up again. Consequently, Mr Bax moved back and forth between his parents and grandparents. He said he came from a violent culture, but his grandmother had a positive influence on his life.
At 14 years of age he left his grandparents’ home to go to sea on a Russian fishing ship as a crew member. He was away for 4 or 5 months then returned to school again until he was 15, and old enough to enrol in an apprenticeship course. He then commenced an apprenticeship in joinery, machinery and boat fitting. When he completed this course, he began working in the building industry, then worked as a truck driver and as a seaman on fishing boats.
Mr Bax said he was married at a young age and had two children. However the marriage only lasted 5 years due, he feels, to his work taking him away for long periods of time. He stated that when he went to sea, things started to go wrong in his life.
Mr Bax was not involved in any juvenile offences under the age of 17 years. His first recorded offences occurred when he was 18 years of age and older. However, these were minor offences and he was not imprisoned until 1993, when he was 35 years of age. He was sentenced to 4 months imprisonment for assault and 2 months imprisonment for the possession of an offensive weapon. These offences occurred in New Zealand.
Mr Bax arrived in Australia in 1994, when he was 35 years of age and he became a permanent resident of Australia.
In March 1998, Mr Bax stated that he committed two counts of assault occasioning bodily harm on his ex-partner and her boyfriend, who was an old friend of his. His ex-partner, Linda …, had left their home while he was at sea and had taken a considerable sum of his money with her.
Some time later, Mr Bax said that he was ‘broke’ so went to Linda’s home to ask for some of the money she had taken. He said he was angry with her at the time and fights ensued, which involved both Linda and her new boyfriend. As a consequence of the assaults, Mr Bax was sentenced to 16 months imprisonment in Hakea Prison on 19th August 1999. He was released on parole after only 5 months, on 27th January 2000. While in prison, Mr Bax completed an Anger Management Course, then was transferred to East Perth Lock-Up as a trustee (sic), due to his good behaviour. He was assessed as being a minimum security risk at the time.
Since his release he has found gainful employment and has been working at a saw mill for 18 months and at Access 31, a community television station for 2 years on a voluntary and sometimes paid basis. He has thoroughly enjoyed his work and has been promoted during his time at both workplaces. Mr Bax said that he intends to continue with this work and maybe extend his role in the television industry as opportunities arise.”
Ms Coxon’s report then sets out in detail the contents of the applicant’s psychometric assessment and summarises the results as follows:
“
SUMMARY OF TEST SCORES
Assessment of Mr Bax’s emotional state revealed no significant anxiety or depression.
Personality Assessment via the PAI [Personality Assessment Inventory] revealed a valid profile with no signs of somatic complaints, anxiety, anxiety related disorders, depression or schizophrenia.
There was a mild elevation on one of the Mania Scales indicating a person who is likely to have thoughts of inflated self-esteem, expansiveness or grandiosity, and who may believe he has exceptionally high levels of skills or talents.
On the Paranoia Scale there was one subscale elevation, suggesting that Mr Bax may closely monitor his environment for evidence that others are trying to harm him or discredit him. He is likely to mistrust the motives of those around him.
One of the Borderline Features Scales was slightly elevated, suggesting a person with a history of ambivalent, intense and unstable relationships, who may feel betrayed by those once close to him.
On one of the Anti-Social Subscales there was also a mild elevation, which suggested that he may be seen to be egocentric with scant regard for the opinions of others or of society.
On the Alcohol Problems Scale his score was average, but on the Drug Problems Scale there was a slight elevation reflecting a person who may have used drugs in the past and have experienced some adverse consequences as a result.
Among the Treatment Consideration Scales there was found to be an average level of control over the expression of anger and hostility.
There was no sign of Suicidal Ideation.
A slight elevation in the Stress Scales reflected the current stressful situation Mr Bax is undergoing.
The Non Support Scale indicated only a few close interpersonal relationships.
On the Treatment Rejection Scale Mr Bax’s score reflected a person who acknowledges the need for change and the positivity about making personal changes.
The Interpersonal Scales indicated that Mr Bax is an individual who is self-reliant and somewhat controlling, who prefers to interact with others in situations where he can be in control.
On the Warmth Scale he did not seem to have any problems.
There were no overall configurations that fit Mr Bax’s profile, which appears somewhat unique.
On the Violence Potential Index (VPI) of the PAI, Mr Bax’s score did not fit within the significant range, nor was his Aggression Scale elevated. The combined scores of these two factors suggests a low risk of future violence.
A Risk Assessment via the Hare PCL-R gave a relatively low score, indicating that Mr Bax has a low risk of re-offending violently.
*****
To answer your questions more specifically:-
1.My assessment of Mr Bax’s Risk of Recidivism is low. During his term of imprisonment in 1999, Mr Bax underwent an Anger Management Program and was then considered by prison personnel to be of minimum security concern. Hence he was made a trustee (sic) at the East Perth Lock-Up. Since his release he has worked on a regular basis and has also become a volunteer worker at the Access 31 Television Studio in a variety of roles. He has worked there for almost 2 years. He has also had steady employment at a sawmill for a period of 18 months.
2.I consider that Mr Bax has become a reformed character, as he has not re-offended violently for a period of 5½ years, as far as I am aware. He has also earned the trust of his employers who have upgraded his duties. I do not see this change being due to chronic depression, as on both psychometric assessments administered, Mr Bax showed no signs of depression. Validity checks demonstrated that his responses on these assessments were genuine and valid.
3.I am of the opinion that the Australian Community would not be at risk if Mr Bax were to remain in Australia. He has proved over the past 3½ years that he can make a contribution to the community and also be gainfully employed.
…” .
(Exhibit A5)
21. In cross-examination Ms Coxon confirmed that, for the purpose of preparing her report, she had seen the applicant on one occasion for a “4-hour interview and assessment session” of which the interview component comprised about 2 hours. She also confirmed that her assessment that the applicant represented a low risk of recidivism was based mainly on the relevant test results, but also on prison reports and the fact that he had “remained in gainful employment and responsible positions and … done some community work for … a bit more than 2 years”. Asked whether her assessment of the risk of recidivism would be different if the applicant were to lose his job, become “broke” again or become involved in another unstable relationship, Ms Coxon said that if the applicant were to lose his present job, having regard to his “many skills” and his history of obtaining employment, it was likely that he would soon find another job, and that, having completed the STAC programme in prison and developed skills regarding the control of aggression, it was “not very likely that he would be involved in a relationship where there would be violence”. (Transcript, p43)
Other Relevant Material
22. The Tribunal has also had regard to the relevant material contained in the Appeal Book (Vols 1 and 2) prepared for the purpose of the applicant’s appeal to the Full Court of the Federal Court of Australia (No W294 of 2002) (Exhibit AR1). In particular, the Tribunal has had regard to the transcript of the previous hearing before the Tribunal regarding the applicant’s original application for review, held on 18 October 2001, and the exhibits received into evidence at that hearing (Exhibit AR1, pp50-126), and to the T documents lodged by the respondent in response to that application for review (Exhibit AR1, pp127-350). It is unnecessary to set out that material here.
The Legislation
The Act
23. The Act relevantly provides:
“200 Deportation of certain non-citizens
The Minister may order the deportation of a non-citizen to whom this Division applies.
201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes
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:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
(ii)was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A)for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B)for periods that, when added together, total less than 10 years as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(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;
section 200 applies to the person.”
Section 499(1) of the Act authorises the respondent to give written directions to a person or body (including the Tribunal) regarding the performance of their functions, or the exercise of their powers, under the Act. By subs (2A) of s 499, such a person or body must comply with a direction given under subs (1).
The Direction
24. The respondent has, pursuant to s 499(1) of the Act, given a General Direction “to any person or body having functions or powers in relation to the deportation of a non-citizen under section 200 of the Act” – namely, “General Direction – Criminal Deportation – No. 9”, dated 21 December 1998 (“the Direction”). The Direction relevantly states:
“…
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.
PRIMARY CONSIDERATIONS
5. The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations. The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7). A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
6. In making a decision whether or not to deport a non-citizen, there are two primary considerations:
(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.
7. In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are:
(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.
COMMUNITY EXPECTATIONS
8. It is the Government’s view that the expectations of the Australian community are a primary consideration in determining whether a potential deportee should be deported. Decision makers should have due regard to the Government’s view in this respect. There are two aspects to community expectations:
(a)the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
Protection of the Australian Community
9. It is the Government’s view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government’s view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community. The Government considers that children and young people are especially at risk in this area. The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision maker should have due regard to the Government’s view in this respect.
10. It is the Government’s view that the following factors are 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; and(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
Decision makers should have due regard to the Government’s view in this respect.
The seriousness and nature of the offence
11. It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.
·Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people.
·The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are (sic) a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
·Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.
(b)organised criminal activity resulting in a conviction in Australia;
(c)sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence;
(d)armed robbery (including robbery involving the use of imitation weapons);
(e)murder, manslaughter, assault or any other form of violence against persons;
(f)terrorist activity;
(g)kidnapping;
(h)blackmail;
(i)extortion;
(j)serious theft (including ‘white collar’ crimes);
·Such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government.
(k)crimes against children;
·Because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children.
(l)any other crimes involving violence or the threat of violence;
·Such crimes are of special concern to the welfare and safety of the Australian community.
(m)ancillary offences in respect to any of the above offences, including:
·convictions for attempting to commit any of the above offences;
·convictions for conspiracy to commit any of the above offences;
·convictions for being an accessory before or after the fact in any of the above offences.
Decision makers should have due regard to the Government’s view in this respect.
12. It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision makers should have due regard to the Government’s view in this respect.
The risk of recidivism
13. It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government’s view in this respect. In particular the following factors will be relevant to the assessment:
(a)the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
(b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
The likelihood that deportation of the potential deportee would prevent (or inhibit the commission of) like offences by other persons
14. It is the Government’s view that this factor may be relevant to protecting the Australian community in various ways:
(a)the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and
(b)the deportation of a potential deportee who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from committing new offences. For example, the potential deportee may be a ringleader whose deportation may reduce the likelihood that his or her associates will commit other offences.
Decision makers should have due regard to the Government’s view in this respect.
Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community
15. It is the Government’s view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person 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 that the person would be deported. Weight should be given to this factor in proportion to the decision maker’s understanding of the community’s attitude to the potential deportee’s offences. Decision makers should have due regard to the Government’s view in this respect.
THE BEST INTERESTS OF THE CHILD
16. It is the Government’s view 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.
·The potential deportee’s children who are aged 18 years or more have attained the age of legal majority. The interests of these children are not considered under this heading but are considered under the heading of ‘The degree of hardship to other Australian citizens or permanent residents, including the potential deportee’s family’ …
…
OTHER CONSIDERATIONS
21. It is the Government’s view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. 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 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).
Decision makers should have due regard to the Government’s view in this respect.
The degree of hardship which may be suffered by the deportee
22. It is the Government’s view that factors to be considered here include:
(a)whether the offender has an ongoing marital or de facto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government’s intention that such people will never be deported;
(c)the degree and extent of the potential deportee’s ties with the likely country of return;
(d)the strength of other family, social or business ties in Australia;
(e) social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.
Decision makers should have due regard to the Government’s view in this respect.
The degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family
23. The best interests of any relevant children are a primary consideration and are not considered under this heading.
24. It is the Government’s view that factors to be considered here include:
(a)the effect deportation would have on any marital or de facto partner, including whether he or she would leave Australia with the deportee and whether this would impose undue hardship on the non-deportee partner;
(b)the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them;
(c)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(d)the views (if any) of the victim or victims of the crimes committed by the potential deportee.
Decision makers should have due regard to the Government’s view in this respect.
…”.
Consideration and Findings
25. For the purpose of deciding whether or not the applicant should be deported from Australia the Tribunal will, in accordance with the Direction, have regard, first to the two “primary considerations”, and, thereafter, to the other relevant considerations, referred to in the Direction.
The first primary consideration – the expectations of the Australian community
26. The relevant expectations of the Australian community are described in paras 8 and 9 of the Direction, and certain relevant factors are specified in para 10 of the Direction. Those relevant factors will now be considered.
The seriousness and nature of the crime
27. Paragraph 11 of the Direction specifies examples of offences which are considered to be “very serious”. These include (relevantly):
“(e) murder, manslaughter, assault or any other form of violence against persons”;
“(l) any other crimes involving violence or the threat of violence;
·Such crimes are of special concern to the welfare and safety of the Australian community”.
The applicant rightly concedes that the relevant deportable offences – namely, 2 counts of assault occasioning bodily harm – fall into those categories and, accordingly, are to be regarded as “very serious”.
28. Paragraph 12 of the Direction states that an indication of the seriousness of the relevant offence(s) is the sentence(s) imposed on conviction thereof. In this connection it is, in the Tribunal’s opinion, appropriate to have regard to the comments made by the sentencing judge when fixing and imposing the relevant sentence(s). In the present case the sentencing judge described the abovementioned assaults as involving a “quite vicious” attack on 2 victims who were unable to defend themselves effectively, and he regarded the circumstances of those assaults as “at the upper end of the scale” of seriousness in relation to the offence of assault occasioning bodily harm such that a substantial term of imprisonment was the only appropriate sentence.
29. The Tribunal acknowledges that the concurrent sentences of 16 months imprisonment imposed on the applicant in respect of the abovementioned assault offences are at the lower end of the range of sentences in respect of deportable offences (see s 201(c) of the Act), but it nevertheless regards those sentences as reflecting offences which, of themselves, are sufficiently serious as to favour the applicant’s deportation. Furthermore, in the Tribunal’s opinion there are no significant mitigating circumstances associated with the commission of those offences by the applicant such as would lessen the applicant’s culpability.
30. In the Tribunal’s assessment, this factor – namely, the seriousness and nature of the criminal offences – weighs substantially in favour of the applicant’s deportation.
The risk of recidivism
31. In considering this factor the Tribunal will have regard to the matters specified in para 13 of the Direction.
32. In the present case the applicant, prior to the commission of the relevant deportable offences, had not been warned by the Department about the risk of deportation arising from the commission of a deportable offence.
33. The applicant’s criminal history in Australia comprises only the 2 relevant deportable offences, which were committed in the course of one incident on 28 March 1998, and 4 relatively minor traffic offences, which were also committed in the course of one incident on 1 February 1999. Accordingly, it cannot be said that the applicant’s criminal history in Australia itself represents a pattern of repeated serious criminal conduct. On the other hand, the applicant’s criminal history in New Zealand – extending over the period from October 1976 to July 1994 – may reasonably be said to represent a pattern of repeated criminal conduct, including 3 separate incidents (namely, in February 1977, October 1993 and July 1994) involving actual violence (namely, 2 offences of assault) or the potential for violence (namely, 1 offence of disorderly behaviour likely to cause violence). Accordingly, it may reasonably be said that the applicant’s entire criminal history in New Zealand and Australia – extending over the period from October 1976 to February 1999 – is indicative of a propensity to re-offend, including a propensity to commit crimes against the person involving physical violence.
34. As regards the period since the commission of the relevant deportable offences in March 1998, however, there is much to be said in favour of the applicant. The Tribunal notes:
· his “excellent behaviour and industry” while in custody at Hakea Prison which culminated in his being released on parole on 27 January 2000 (after having served approximately 5 months of his 16 months sentence) – which the Tribunal understands to be the earliest eligible date for his release on parole (Exhibit AR1, p 313);
· while in custody he successfully completed an anger management course, “Skills Training for Aggression Control (STAC), in October 1999 (Exhibit AR1, p 312);
· in November 1999, on the recommendation of a Senior Prison Officer who was in charge of the unit in which the applicant was accommodated in Hakea Prison, the applicant was transferred to the East Perth Lockup as a “trusty” – a “very trusted position” which involves relative freedom of movement and minimal supervision (Exhibit AR1, pp 67-70 312).
The Tribunal notes that, at the previous Tribunal hearing, evidence in support of the applicant was given by the abovementioned Senior Prison Officer, by his parole officer and by an Immigration Detention Supervisor at the Perth Immigration Detention Centre where the applicant was subsequently detained in November 2000 after the relevant deportation order had been made against him (Exhibit AR1, pp 53-72, 110-117). Since the applicant’s release from custody on 27 January 2000 he has, according to his evidence (which the respondent did not dispute and which the Tribunal accepts), been engaged in remunerative employment in wood-working occupations for most of that period, most notably with a sawmilling company (Pinetec) from March 2002 for almost 2 years although he has recently ceased that employment and commenced employment on a “permanent casual” basis with Contract Marine Coatings at a significantly higher hourly rate of pay than he was receiving when employed by Pinetec (Exhibit A3). He has also, since November 2001, worked on a voluntary basis at Access 31, a local community television station in Perth, and he presently spends each Saturday there supervising the operation of the station and is also involved in a number of the station’s regular weekly programmes. In addition the applicant, late in 2003, established his own couch manufacturing business and, for that purpose, entered into a lease of business premises in December 2003. To date the applicant has manufactured 1 couch which is leased commercially and he has an arrangement with Access 31 to supply 2 couches in return for promotional advertising of his business on that television station for a specified period (Exhibit A4). Clearly this business is presently a very small-scale operation but the applicant plans gradually to expand it and to make it profitable.
35. The matters referred to in the preceding paragraph indicate, in the Tribunal’s opinion, that the applicant, during the period of 6 years since he committed the relevant deportable offences, has achieved a significant degree of rehabilitation and has commenced to make a positive contribution to the local community, and there is nothing of which the Tribunal is aware that would suggest that this process of rehabilitation and community contribution will not continue. In this connection, the Tribunal notes the expert evidence and report (Exhibit A5) of Ms L Coxon, Clinical and Forensic Psychologist, in which she expressed the opinion that:
· the applicant “has become a reformed character”;
· the applicant’s risk of recidivism is “low”;
· the Australian community would not be placed at risk by the applicant’s remaining in Australia.
Ms Coxon’s report was based on a 4-hour interview and assessment session (including a 2-hour interview with the applicant) and, having regard to Ms Coxon’s expert qualifications and extensive relevant experience, the Tribunal attaches great weight to her report and to the opinions exposed therein and confirmed in her oral evidence.
36. The Tribunal, of course, had the opportunity to observe the applicant as he gave his evidence and to assess his genuineness and general credibility. The Tribunal notes that although the applicant did, in his oral evidence, express contrition and remorse regarding his commission of the relevant assault offences, he also sought to minimise somewhat his culpability and the seriousness of his conduct in relation thereto. Although the latter point causes the Tribunal to have some reservations regarding the applicant’s acceptance of responsibility for his criminal conduct and the sincerity of his expression of remorse therefor, it does not cause the Tribunal seriously to doubt his credibility generally, nor, in particular, does it cause the Tribunal not to accept the expert opinion of Ms Coxon that, in the case of the applicant, there is a “low” risk of his re-offending violently and of recidivism generally.
37. Having regard to the matters referred to in paragraphs 33-36 above, the Tribunal accepts the opinion of Ms Coxon that the risk of recidivism in the applicant’s case is low and that his remaining in Australia would not pose a risk to the safety or wellbeing of the Australian community. The Tribunal is, furthermore, of the opinion that the applicant has, since his release from prison, been making a positive contribution to the community and, if given the opportunity, is likely to continue to do so.
38. In the Tribunal’s assessment, this factor – namely, the risk of recidivism – does not weigh in favour of the applicant’s deportation.
The likelihood that deportation of the applicant would prevent or inhibit the commission of like offences by other persons
39. The Tribunal accepts that the deportation of the applicant, by reason of his having been convicted of the relevant deportable offences, would be likely to deter other non-citizens from committing similar offences (see para 14(a) of the Direction).
40. Accordingly, this factor, in the Tribunal’s assessment, weighs in favour of the applicant’s deportation. In the Tribunal’s opinion, however, this factor is deserving of substantially less weight than either of the 2 previously-mentioned factors.
Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community
41. Paragraph 15 of the Direction states, inter alia:
“Weight should be given to this factor in proportion to the decision maker’s understanding of the community’s attitude to the potential deportee’s offences.”
In the Tribunal’s opinion the relevant assault offences committed by the applicant in March 1998, although very serious, were not so heinous or abhorrent that the Australian community would necessarily expect that, regardless of other relevant considerations, the applicant should, by reason of having committed those offences, be deported. In assessing the likely expectation of the Australian community regarding either the applicant’s deportation by reason of his having committed those offences, or, alternatively, his being allowed to remain in Australia notwithstanding his having committed those offences, it is appropriate, in the Tribunal’s opinion, to impute to the hypothetical reasonable and fair-minded member of the community knowledge, not only of those offences and the circumstances in which they were committed, but also of the applicant’s other relevant circumstances including, in particular, that:
·in the period of 6 years since those offences were committed, the applicant, having served a period of imprisonment during which he was regarded by his supervising prison officer as a model prisoner and was rewarded by being made a “trusty” prisoner, has not been convicted of any further serious offences or any offences involving violence;
·since his release from prison the applicant has, for most of that period, been gainfully and lawfully employed, and has also performed ongoing responsible work on a voluntary basis at a local community television station; and
·the applicant has been examined and assessed by an experienced clinical and forensic psychologist as being a reformed character and representing a low risk of violent reoffending or of recidivism generally, and as presenting no risk to the safety of the Australian community if allowed to remain in Australia.
42. In the Tribunal’s opinion reasonable and fair-minded members of the Australian community, apprised of all the relevant circumstances regarding the applicant, would not expect that he should be deported but, rather, that he should be given the opportunity to continue to pursue the law-abiding and productive life that he has been leading in Australia since his release from prison in January 2000.
Overall assessment of the first primary consideration
43. Having regard to all relevant factors in relation to the first primary consideration – namely, the expectations of the Australian community – it is the overall assessment of the Tribunal that, notwithstanding the seriousness of the relevant assault offences committed by the applicant in March 1998, on balance those factors weigh against the applicant’s deportation and in favour of his being allowed to remain in Australia.
The second primary consideration – the best interests of the child or children
44. The applicant has 2 children, who are both over the age of 18 years and who live in New Zealand (Exhibit AR1, p 226). Accordingly, the applicant rightly conceded that this primary consideration is not relevant in the circumstances of his case and he did not seek to rely on it.
Other considerations
45. The Tribunal must also have regard to other relevant considerations although, in accordance with para 21 of the Direction, these are to be given less weight than the abovementioned primary considerations. Such other considerations include the degree of hardship that may be suffered, in the event of deportation, by the deportee and any Australian citizens or permanent residents, including members of the deportee’s family (other than children under the age of 18 years who are the subject of the abovementioned second primary consideration).
46. The only matter on which the applicant sought to rely in this connection was the hardship that he would suffer if deported by reason of:
· his loss of remunerative employment and future business and career opportunities in Australia and the lack of comparable employment, business and career opportunities in New Zealand;
· his loss of membership of Australian society in which he has lived since September 1994 and with which he now identifies himself.
47. According to the applicant’s own evidence, the members of his immediate family comprise his parents, 2 siblings and 2 adult children, but he has had no contact with his parents and siblings since approximately 1972, and no contact with his children since approximately 1984, and he has no knowledge of their present whereabouts. He does not presently have a marital or de facto relationship in Australia with an Australian citizen or Australian resident and, as far as he is aware, no member of his family lives in Australia. He does, however, have friends and work colleagues in Australia.
48. In the Tribunal’s opinion, the applicant, having spent his formative years and continued to reside until his mid-30s in New Zealand in a culture and way of life similar to that of Australia, would be unlikely to suffer significant emotional or social hardship if he were returned to New Zealand. As regards economic hardship, the Tribunal is prepared to accept that the applicant would be relatively economically disadvantaged if he were returned to New Zealand, although the Tribunal is unable to assess the degree of that disadvantage. On the one hand, the applicant impressed the Tribunal as an ambitious and resourceful person possessing trade skills such that, even in a relatively depressed labour market as he claimed existed in New Zealand, he would be likely to find gainful employment in New Zealand; but, on the other hand, the Tribunal is prepared to accept the applicant’s evidence that relatively fewer employment opportunities would be open to him, and that his employment income level would probably be lower, in New Zealand as compared to Australia. Accordingly, the Tribunal is prepared to accept that the applicant, if returned to New Zealand, would suffer some economic hardship but the Tribunal is not satisfied that that hardship would necessarily be substantial.
49. Having regard to the considerations referred to in paragraphs 46-48 above, the Tribunal’s assessment is that they, on balance, weigh against the applicant’s deportation, but not to a substantial degree.
Overall assessment of the relevant primary consideration and other considerations
50. Having regard to all relevant considerations in this matter, the Tribunal’s assessment is that, on balance, both the relevant primary consideration – namely, the expectations of the Australian community – and the other relevant considerations weigh against the applicant’s deportation and in favour of his being allowed to remain in Australia.
Conclusion
51. The conclusion of the Tribunal is, therefore, that the deportation order made by the respondent on 12 October 2000 should be set aside. At the hearing the Tribunal raised with the parties the matter of the appropriate form of the Tribunal’s decision, in the event that the Tribunal decided to set aside the deportation order. The parties expressed the view that, in that event, it would be appropriate for the Tribunal to substitute a decision that the applicant not be deported, rather than to remit the matter to the respondent for reconsideration in accordance with a direction that the applicant not be deported. The Tribunal agrees that that is the proper course for it to take in this case.
Decision
52. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the applicant not be deported.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed: ............(sgd V Wong).................................
AssociateDate/s of Hearing 10 March 2004
Date of Decision 31 March 2004
Counsel for the Applicant Mr M Rothstein
Solicitor for the Applicant Mervyn Rothstein & Co
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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