Brehoi and Minister for Immigration Multicultural and Indigenous Affairs
[2002] AATA 214
•4 April 2002
DECISION AND REASONS FOR DECISION [2002] AATA 214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1997/1221
GENERAL ADMINISTRATIVE DIVISION )
Re Nicolae Brehoi
Applicant
And Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr R P Handley
Date4 April 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – Deportation – Criminal Deportation Order – Safety and welfare of the Australian Community – Best interests of the child of a possible deportee – Australia's responsibilities and obligations to Refugees – humanitarian rights of a potential deportee.
Migration Act 1958 ss 200, 201, 499(1) (2) (2A),
Baias and Minister for Immigration and Multicultural Affairs (AATN 95/992, 15 November 1996)
Bengescu v Minister for Immigration and Ethnic Affairs (AAT 9250, 17 January 1994)
Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772
Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713
Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Orbulescu and Minister for Immigration and Ethnic Affairs (AAT W93/168, 1 October 1993)
Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 39
Todea and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 639
REASONS FOR DECISION
4 April 2002 Mr R P Handley
This is an application by Nicolae Brehoi ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 20 August 1997 to order the deportation of Mr Brehoi from Australia. At the hearing, Mr Brehoi represented himself and the Respondent was represented by Dale Watson, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the other documents tendered by the parties. Oral evidence was given at the hearing by Richard Aub, Kylie Mackrell, Nicolae Svilengatyin and the Applicant.
BACKGROUNDMr Brehoi was born in Romania on 21 August 1958 and is aged 43. He arrived in Australia on 8 March 1980, aged 21, under the Eastern European Refugee Program. He has not subsequently travelled outside Australia. Mr Brehoi has the following criminal history:
Date Description
23 August 1982 Convicted of "steal from person" – 6 months imprisonment with hard labour by way of periodic detention.
Convicted of "assault" – placed on recognisance.
15 February 1983 Convicted of "fail to report for periodic detention" - 6 months imprisonment.
Convicted on 3 charges of "false representations" – fined $200, in default 8 days imprisonment with hard labour.
13 May 1983Called up for breach of recognisance re the assault offence – sentence deferred upon a further recognisance being entered into.
6 September 1983 Convicted of stealing – 8 days imprisonment.
14 September 1984 Breach of recognisance – 16 months imprisonment.
2 October 1984 Convicted of break, enter and steal, and break, enter, and steal with intent – sentenced to 5 months hard labour on each of these two charges.
3 October 1984 Convicted on 3 counts of false pretences – 12 months imprisonment.
Convicted of fail to appear – 40 days imprisonment.
14 February 1985 Convicted of break, enter and steal.
8 November 1985 Convicted on 2 counts of assault and malicious injury – recognisance to be of good behaviour for 2 years and $500 bond, $2000 fine on each count, and ordered to pay compensation of $227.
22 April 1986 Convicted of illegal use of a conveyance and being an unlicensed driver – entered into recognisance to be of good behaviour with a $500 bond, and fined $50.
19 September 1986 Convicted of break, enter and steal – 4 months imprisonment.
22 September 1987 Convicted of use of heroin – 3 months imprisonment.
Convicted of supply of heroin – 12 months imprisonment.
12 November 1987 Breach of recognisance – 12 months imprisonment.
6 January 1988 Convicted of supply of heroin – 2 years imprisonment.
Convicted of possession of heroin – 18 months imprisonment.
15 June 1988 Convicted of supply of heroin – sentenced to 3 years, but conviction subsequently quashed on 5 July 1989 by the Court of Criminal Appeal which ordered a new trial. The Director of Public Prosecutions decided later not to proceed.
30 August 1988 Convicted of administering heroin – 4 days imprisonment.
13 February 1990 Convicted of possessing an offensive implement – fined $150.
4 October 1991 Arrested for supply of heroin – bailed next day.
19 April 1992 Arrested for supply of heroin – bailed on 22 April 1922.
24 March 1993 Convicted on 2 counts of assault occasioning actual bodily harm – recognisance entered into with $1,000 good behaviour bond for 2 years.
2 December 1993 Arrested on various charges of supplying heroin – bail refused.
4 August 1995 Convicted on 2 counts of supplying a prohibited drug – 4 years and 18 months respectively.
Convicted on 2 counts of supplying prohibited drug – 2 years and 6 months imprisonment.
Convicted on 1 count of supplying a commercial quantity of a commercial drug – 4 years imprisonment.
19 February 1998 Escaped from Villawood Detention Centre.
19 March 1998 Breach of parole – sentence term 2 years 3 months and 14 days.
10 April 1998 Arrested for breach of parole.
17 December 1998 Released on parole – taken into immigration detention. Currently held in Silverwater Metropolitan Remand and Reception Centre ("Silverwater MRRC").
In 1986, Mr Brehoi commenced a de facto relationship with Vicki Smith which lasted approximately 18 months. Then, in about 1990, he commenced a relationship with Fiona Middleton. On 12 September 1993, their daughter, Olivia Brehoi was born (A Documents p41). Mr Brehoi's relationship with Ms Middleton appears to have come to an end sometime after October 1994. He has been in custody since 2 December 1993. On 20 February 1997, proceedings initiated by Ms Middleton commenced in the Family Court for the custody of and with regard to contact with Olivia Brehoi. On 6 April 1998, the Court ordered that Olivia should reside with her mother who would have sole responsibility for her long term and short term care, welfare and development, and that Mr Brehoi have no contact with her. On 2 November 1999, Mr Brehoi lodged an application in the Family Court with regard to the orders of 6 April 1998. It appears that proceedings in relation to the application are still on foot.
On 13 December 1991, Mr Brehoi was interviewed by Departmental Officers in relation to possible deportation (T13). On 30 March 1992, a delegate of the Respondent decided not to order Mr Brehoi's deportation. Mr Brehoi was issued with a Departmental Letter of Warning, receipt of which he acknowledged on 11 May 1992 (T18). The letter stated:
…you are warned that any further conviction may lead to the question of your deportation being reconsidered by the Minister or his delegate
Disregard of this warning will weigh heavily against you if your case is reconsidered.On 20 August 1997, a delegate of the Respondent decided to order the deportation of Mr Brehoi (T40), and a deportation order was made on that day (T42). On 10 September 1997, Mr Brehoi lodged an Application for Review of that decision with the Tribunal. In December 1997, Mr Brehoi completed his sentence of imprisonment and was taken into immigration detention pending the hearing of his application by the Tribunal. The matter was listed for hearing on 2 March 1998. However, Mr Brehoi escaped from Villawood Detention Centre on 19 February 1998 and failed to attend the hearing of the Tribunal on 2 March 1998. The Tribunal therefore dismissed Mr Brehoi's application for failure to appear. He was subsequently recaptured on 11 April 1998 and taken back into immigration detention. On 22 April 1998, Mr Brehoi wrote to the AAT requesting a further hearing which, on 30 April 1998 was refused.
On 23 September 1998, Mr Brehoi appeared before the Federal Court to apply for an extension of time to file and serve an application for judicial review of the decision of the Tribunal of 2 March 1998 dismissing Mr Brehoi's application. On 20 October 1998, that application was dismissed. On 14 December 1998, Mr Brehoi appealed against that decision to the Full Federal Court. On 16 June 1999, the Federal Court dismissed Mr Brehoi's appeal (Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772) but, at paragraph 44, commented in relation to matters raised before the Court that the Tribunal had not yet determined Mr Brehoi's reinstatement application according to law, as a result of doubts over whether Mr Brehoi had been properly notified of the Tribunal's decision of 2 March 1998. On 5 July 1999, Mr Brehoi lodged a request for reinstatement of his application with the Tribunal and on 7 September 1999, the Tribunal decided to reinstate his application.
Mr Brehoi then applied to the Attorney General for legal assistance pursuant to s 69 of the Administrative Appeals Tribunal Act 1975. When such legal assistance was refused, Mr Brehoi pursued this in the Federal Court. He also commenced separate proceedings to have the deportation order declared a nullity. Both proceedings were ultimately unsuccessful. These other Federal Court proceedings delayed the hearing in the current matter, which did not take place until 14 February 2002.
RELEVANT LAW AND POLICYSection 200 of the Migration Act 1958 ("the Act") provides that the Minister may order the deportation of a non-citizen to whom Division 2 of the Act applies. Under s 201, the Minister may order the deportation of non-citizens who have been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than ten years. Mr Brehoi arrived in Australia on 8 March 1980 and was given permanent resident status. It is not in dispute that he committed offences for which he was sentenced to terms of imprisonment of not less than one year on 6 January 1988 and 4 August 1995. The offences in respect of which Mr Brehoi was convicted and sentenced on the latter date were committed between 4 August 1991 and 4 October 1991. Mr Brehoi's length of lawful permanent residence prior to the commission of the first deportable offence on 6 July 1997 was 6 years 1 month and, prior to 4 October 1991 was approximately 8 years 6 months. Thus, he is liable to deportation within the framework of these provisions of the Act.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the Regulations".
On 21 December 1998, the Minister issued a General Direction under s 499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation under Section 200 of the Migration Act 1958" (Direction No. 9). Direction No. 9 states in paragraph 4:
The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian Community and to exercise a choice on behalf of the Australian Community as a whole as to who should be allowed to remain in the community.
The Direction goes on to provide guidance as to the important factors which should be considered by a decision-maker when determining whether or not a person should be deported. The two primary considerations to be considered in making a decision whether or not to deport a non-citizen, set out in paragraph 6, are:
(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.
In addition to these primary considerations, paragraph 7 states that 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;
(b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.
Direction No. 9 provides further guidance in relation to each of these considerations. This further guidance will be discussed below in relation to the particular facts of Mr Brehoi's case.
ORAL EVIDENCE
Richard AubMr Aub said he has been a Correctional Officer with the Department of Corrective Services for 13 years. In 1996/1997, he was working at Silverwater MRRC as a Field Liaison Officer in relation to the Work Release Program. Mr Brehoi participated in that program during late 1996 and early 1997 when he worked as a chef at Vaucluse House. He was trusted to use public transport to travel from Silverwater to Vaucluse House which involved travelling time of 1 ½ to 2 hours each way. Mr Aub recalled an incident in about February 1997, when Mr Brehoi passed some information to him about another inmate of Silverwater whom, Mr Brehoi learned, had committed an offence in South Australia. As a result of the information provided by Mr Brehoi, this inmate was extradited to South Australia to face a charge of murder.
Mr Aub said Mr Brehoi uses his time in custody to his full advantage, for example in educational programs related to his artwork. He co-operates well with prison staff, has good work reports from Correctional Officers, is punctual, and used never to be late in returning to Silverwater from his work release assignments. Mr Brehoi was never involved with other inmates whom he described as the "bad guys". Mr Aub said he has observed Mr Brehoi over a period of about 12 months during which he also had day release at weekends. There was never any problem with Mr Brehoi returning on time and he always did the right thing. The only instant that Mr Aub could recall when there had been a problem with Mr Brehoi was when he was working at Vaucluse House. His boss phoned to say that Mr Brehoi was making a sauce, which included alcohol in it and that Mr Brehoi was tasting the sauce. Mr Aub checked on Mr Brehoi following this report. He did not find that Mr Brehoi was intoxicated, although he was removed from the work release program for a while and was not permitted to continue working at Vaucluse House. Mr Aub said he had no knowledge of any other incidents involving Mr Brehoi.
Kylie Mackrell
Ms Mackrell said she is a psychologist at Silverwater MRRC. She has a Bachelor of Science degree with Honours in Psychology from the University of New South Wales and is presently undertaking a Master's degree in Forensic Psychology at the University of Western Sydney. Ms Mackrell has been practising as a psychologist for five years, first in the field of child protection, and then, for the last 1 ½ years, working for the Department of Corrective Services. She has also had experience with the Police Psychologist Unit and with the Office of the Director of Public Prosecutions. At Silverwater, her main function is to provide crisis and supportive counselling to inmates. Ms Mackrell first had social contact with Mr Brehoi about 1 ½ years ago, which involved the exchange of normal pleasantries. However, she has also conducted two counselling sessions with Mr Brehoi on 14 and 19 December 2001, on each occasion for about 40 minutes. She said this was insufficient time to form a professional opinion as to his psychological state. He consulted her because he was experiencing sleep difficulties and nightmares. He told her that he was the victim of a home invasion in November 1993 and, around the anniversary of that incident, he experiences sleep difficulties and nightmares. Mr Brehoi told her that he was considering pursuing charges against those who invaded his home. She discussed different coping strategies with him to assist with his sleep. She noted that he was drinking a lot of coffee and smoking heavily and they discussed the effect of this.
Nicolae SvilengatyinMr Svilengatyin had made a Statutory Declaration dated 23 October 2001 (A1). He said he arrived in Australia in 1980 with his wife as migrants from Romania. Initially, they resided at the Villawood Hostel, which is where they met Mr Brehoi. They struck up a friendship because they both conversed in the gypsy language and because they are fellow countrymen. Mr Svilengatyin said he has been an Australian citizen since 1983. At first, he worked in a factory and then, in 1984, he opened a coffee lounge in Cabramatta. He subsequently sold that business and now has an import/export business.
At first after leaving the Villawood Hostel, Mr Svilengatyin, his wife and 2 daughters lived for nearly 2 years in a Housing Commission house. He said Mr Brehoi lived at their house for about a year between 1982 and 1984. Mr Svilengatyin has now bought a house and lives at Mount Annan.
Mr Svilengatyin knew nothing of Mr Brehoi's early convictions for stealing and assault. He remembered that in 1983/1984, Mr Brehoi was in hospital after someone had beaten him up. Mr Svilengatyin said Mr Brehoi is a good man. They used to meet at the Romanian Orthodox Church, which they both attended and which was where Mr Svilengatyin met Mr Brehoi's financee, Fiona. Mr Svilengatyin said he had lost contact with Mr Brehoi after that, but then Mr Brehoi phoned him a few months ago to say that he was going to be deported and Mrs Svilengatyin subsequently went to visit him in prison.
Mr Svilengatyin said that in Romania, Gypsy people are not respected and are treated badly and downtrodden. He went back to Romania in about 1990, after the revolution, to see his family. He said gypsies are still very poor in Romania and it is difficult to get work. His mother, brother and sister are still there and he supports them by sending clothes, medicines, and money. The distinction between gypsies and other Romanians is similar to the difference to whites and blacks.
Nicolae Brehoi (the Applicant)Mr Brehoi said he comes from a subculture of gypsies. As a child, he remembers being picked on and discriminated against because of his background. His father was a member of the Communist Party and President of the Roman Party in five suburbs of Bucharest. His mother worked as an executive chef. After their family home was burnt down when he was in the second year of primary school, he and his elder sister were placed in the care of a monastry at Snagov, in the country, where they lived until the age of about 14, when they returned to live with their parents and attend High School. After completing High School at the age of 18, Mr Brehoi studied at the Institute of Mining Engineers for about 18 months, once again suffering the same sort of abuse and discrimination which he had always experienced because he was a gypsy.
At the age of 19 ½, Mr Brehoi was called up for National Service. During training, his colleague was shot in the head. The following day, Mr Brehoi was questioned about this incident but denied seeing what had taken place. Mr Brehoi was taken into a room where he was stripped naked and kicked and burned on the neck with cigarettes. A week later, he was surprised when he was promoted to the rank of corporal and sent to serve in a military intelligence unit on the border with Yugoslavia. This was in late 1979. Mr Brehoi was at the border for about six weeks and then an opportunity presented itself for him to cross the border into Yugoslavia. He crossed with four others, carrying with him a file of sensitive information regarding the security of Romania. Thirty six hours after crossing the border, they were caught by the Yugoslav military intelligence and taken away for interrogation. He was searched and the file of sensitive information was found. He co-operated during the interrogation which was conducted with the assistance of a Romanian interpreter. Because, at the time, Mr Brehoi was suffering from frostbite, he was taken to a hospital in Belgrade where he was also offered protection. He wanted to migrate to the USA or Canada, but instead was offered Australia. About February/March 1980, he was accommodated in a hotel in Belgrade with two security guards and then put on a flight to Australia as a political refugee.
On arriving in Australia, Mr Brehoi said he was taken to the Villawood Hostel where he lived for two or three months. At this stage, he could speak no English.
He got a job working for Leyland assembling cars and trucks whilst at the same time doing a second job making pizzas. After moving out of Villawood Hostel, he shared a flat with others. Mr Brehoi said his first conviction in 1982 arose out of an incident when he was carrying two weeks wages with him to pay the balance owed on a lounge suite on which he had paid a deposit of $100. He was assaulted by some hooligans and, when fighting back, was arrested and charged with assault and armed robbery. He was taken to Parramatta Jail where he was later bailed out by friends. Not long after, he was injured in a car accident as a result of which his friend died. Mr Brehoi recovered afterwards in St Vincent's Hospital. After his release from hospital, he returned to Cabramatta where he got a job as a chef. In 1983, before his trial on charges of stealing and assault, he was taking some money to the bank when he was attacked and robbed. As a result, he spent five weeks in hospital. At the trial, he was sentenced to six months weekend detention. He did not attend this and went to work on the power lines. Thus, he was later arrested for failing to serve his weekend detention.
Mr Brehoi said his relationship with Vicki Smith arose because she was his neighbour and lived next door. He remembered having a hernia operation at about this time and being on social security benefits for a while. Then he was wrongly arrested and tried for the offence of armed robbery. This had taken place while he was in hospital and so he was found not guilty. On another occasion, he woke up drunk in a police station and found himself charged with attempting to break and enter. Mr Brehoi said he was suffering from depression and had started drinking and smoking heavily.
In 1986, he started using drugs. At this time, he was working as a cook. He was in a hotel room with a girl who bought a deal of heroin with money that he gave her when there was a police raid. He was charged with supplying heroin because he had half a foil of heroin and she also had a half. Mr Brehoi said his conviction on the second charge of possessing heroin was later quashed after he had served 18 months. At about this time, he also gave evidence about corruption in the New South Wales Police Service.
Mr Brehoi said in 1989 he was buying and selling junk in the Glebe markets. He met Fiona Middleton with whom he began a relationship. This was a good relationship, but a few months after it commenced he realised Fiona was using drugs. On one occasion, he found her lying on the floor. He gave her an injection and then called the ambulance, his actions saving her life. He acknowledged that he had slapped her lightly about the face. He also told her of his criminal record. He used to buy heroin for her and then started using heroin again himself and became addicted. On one occasion, when he had money from a workers' compensation settlement, Fiona had bought four or seven grams of heroin. The police raided their house on 4 October 1991 and one of the police officers planted more heroin on him. Mr Brehoi said he pleaded guilty to supplying heroin, so that Fiona would not go to prison. By this time, he was working as a chef at a bistro and was also selling his artwork. Brett Whitely was his next door neighbour and a good friend.
On 19 February 1993, an undercover police officer came to Mr Brehoi's house and asked Mr Brehoi to buy drugs for him. On 18 November 1993, Mr Brehoi tried to make a drug deal for this man in Glebe and was beaten up by hooligans and, on 2 December 1993, was arrested and charged with supplying a commercial quantity of heroin. Mr Brehoi said he tried to report this entrapment to the Police Royal Commission. While he was in prison for this offence, he reported information to Mr Aub about another inmate committing a crime in South Australia which lead to that person's extradition.
In 1991, Mr Brehoi received a letter from his uncle saying that his family had passed away in Romania. This prompted him to send a nasty letter to the Minister of Justice in Bucharest. He now no longer maintains any contact with Romania. In cross-examination, Mr Brehoi said it was in late 1991 that he was spoken to by immigration officers, who warned him that he was liable to deportation. He acknowledged having been served with a Notice which he signed by way of receipt on 11 May 1992. He agreed that despite that warning, he has been found guilty of several other offences. Mr Brehoi said he does not acknowledge all the offences listed in the chronology.
Mr Brehoi said he has been fighting to maintain contact with his daughter, Olivia since 1996. The Orders of the Family Court concerning Olivia were made on 6 April 1998 when he was in prison. He was not aware of the hearing and so he did not appear and did not defend the action. As a consequence, on 8 May 2000, he obtained an Order from the Court permitting him to restore his application on 14 days notice after his release from prison. He has not abandoned his action but will seek to resume this when he is released (Applicants documents pp40 - 46).
When Fiona Middleton moved to Melbourne in 1996, Mr Brehoi said he initially maintained contact with Olivia by phoning twice a week. In cross-examination, he was referred to a letter to Mr Ruddock from Fiona's father's solicitors, expressing concern for her safety (T p144). Mr Brehoi said he has never met Mr Middleton. Mr Brehoi was also asked about the Child Support Agency. He said he had never made any child support payments. He has, however, sent Olivia Christmas and birthday presents.
Mr Brehoi was asked about drug rehabilitation. He said he had finished a program in 1995. He was also asked about his contact with George Radu. Mr Brehoi said he has lost contact with Mr Radu because Mr Radu is often away. The occasion that he was late back to Villawood after being out on day release, was when he was with Mrs Radu at Church. With regard to his breach of parole in February 1998 when he escaped from Villawood, Mr Brehoi said he was scared because his room mate was infected with AIDS, Hepatitus C and Tuberculosis, and was dying. Mr Brehoi escaped, and took this person, George, to hospital, but despite this, George died two months later.
Mr Brehoi asked the Tribunal to take into account that the quantities of drugs involved in his convictions were very small and that he was merely a user and never a dealer. He has always worked in Australia and accepts his responsibilities.
SUBMISSIONS
RespondentMs Watson, for the Respondent, said deportation is available in respect of Mr Brehoi because, under s 204(1) of the Act, the length of time a person spends in prison is excluded in determining the length of time that the person has been present in Australia as a permanent resident. Section 201(b)(c) provides that the Minister's power to order the deportation of a person under s 200, applies when the offence, for which the person must have been sentenced to imprisonment for a period of not less than one year, was committed at a time when the person was a non-citizen who had been in Australia as a permanent resident for a period of less than 10 years. The Respondent has calculated that at the time of Mr Brehoi's commission of his first deportable offence on 6 July 1987, the period of his lawful permanent residence was six years and one month, and, at the time of the commission of his second deportable offence, between 4 August 1991 and 4 October 1991, the period of his lawful permanent residence was approximately eight years and six months. Thus, the Respondent submits that Mr Brehoi is liable to deportation.
Ms Watson said that the Applicant's deportable offences are part of a pattern of offences against property and the person and related to drugs. Ms Watson referred the Tribunal to the comments made by Judge Karpin in the District Court in Sydney. In sentencing Mr Brehoi on 4 August 1995 for the second deportable offence committed between August and October 1993 (T22) Judge Karpin said:
His past record and offending and returning to offending, despite being given opportunities by the sentencing court is not encouraging.
With regard to recidivism, Ms Watson said Mr Brehoi was warned in 1992 about the possibility of deportation but, nevertheless, in 1993, committed other deportable offences. His criminal record also shows a number of good behaviour bonds which he has broken and, even in prison, he has at times failed to obey the rules, for example by escaping from Villawood in February 1998. Ms Watson said there is a pattern of Mr Brehoi not accepting rules if it does not suit him.
Ms Watson said the crimes, which are the foundation of the deportation order, are serious and include several convictions for supplying heroin. In her statement of facts and contentions, Ms Watson referred to the Tribunal decision in Bengescu and Minister for Immigration and Ethnic Affairs (AAT 9250, 17 January 1994), where Deputy President McMahon said "the potential damage to the community from dealing in heroin is universally accepted as great". Further, in Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36 at 39, Brennan J. stated that:
The criminal sale of heroin is an offence which raises a strong case for deportation, whether the offender be a pusher who seeks to profit from a loathsome trade, or whether he be an addict who seeks merely to maintain his supplies of the drug.
Ms Watson said while the Respondent acknowledges that Mr Brehoi has generally used his time in prison well, the time spent by him in the community is a better guide to conduct.
With regard to the Best Interests of the Child, Ms Watson noted the very limited contact Mr Brehoi has had with his daughter, Olivia. Ms Watson said there is currently a Family Court order that Mr Brehoi have no contact with Olivia, although Mr Brehoi has challenged that Order. Mr Brehoi was arrested within a few months of Olivia's birth and has been in custody ever since. While, at first, he had contact with her, this has not been on-going because, the Respondent submits, of opposition by Olivia's mother. Ms Watson noted that Mr Brehoi has also not provided any financial support for Olivia. She said that if Mr Brehoi were deported, this would have very little impact on his daughter.
With regard to hardship to Mr Brehoi if he has to return to Romania, Ms Watson submitted that his original refugee status on arrival in Australia is no longer relevant because the regime in Romania is quite different today from what it was in 1980. The Respondent submits that Mr Brehoi now falls within Article 1(C)5 of the Refugees Convention as the circumstances in Romania have changed so markedly since the Applicant's departure in 1980. There is no basis for the Applicant to be regarded as having a well-founded fear of persecution should he be returned to Romania. Ms Watson referred the Tribunal to the Report by the US State Department for Romania dated February 2001 (R1). In any event, Ms Watson submitted that deportation is not a breach of the Convention if the person commits a serious crime in the country which accepts him. Ms Watson contended that Mr Brehoi has made very little contact with the broader Australian community and has no on-going relationships and no residential, social or employment ties. Ms Watson noted that Mr Svilengatyin admitted that he had long lost contact with Mr Brehoi while he has been in prison.
Ms Watson referred to the US Statement Department Report (R1) which refers to steps taken in Romania to protect the Romani population and the establishment of the Department for the Protection of National Minorities. Ms Watson said while there may still be incidents of individualised discrimination like that which occurs in Australia against members of the Aboriginal population, the risk of individual discrimination is not a sufficient reason to outweigh the need to protect the Australian community.
With regard to the feasibility of Mr Brehoi returning to Romania, Ms Watson referred the Tribunal to departmental file notes with regard to discussions between departmental officers and an officer at the Romanian Embassy (R2). These indicate that the Embassy is prepared to issue Mr Brehoi with a travel document: once an application is made to the Embassy, travel documents will be forthcoming.
Ms Watson noted that Mr Brehoi had raised a question as to the validity of Direction No. 9. She pointed out that Mr Brehoi's case is not one involving a refusal to grant a visa under s 501(1) of the Act and sought to distinguish Direction No. 9 from Direction No. 17, the validity of which had been questioned in a number of decisions made by the Federal Court with the result that Direction No. 17 has now been replaced by Direction No. 21. In the Federal Court decision in Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 at paragraph 37, Stone J noted the significant difference between Direction No. 9 and Direction No. 17, and referred to the Federal Court decision in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713, where Sackville J construed Direction No. 9 in such a way as to preserve the discretion of the decision-maker to take into account all the relevant circumstances of the case, thereby avoiding any questions as to its invalidity.
ApplicantMr Brehoi said that the offences of which he was convicted were not serious offences and the Tribunal should take into account the circumstances in which those offences were committed. For example, the offences for which he was arrested and charged in December 1993 arose out of the New South Wales Police using Mr Brehoi as a "sacrificial lamb" to entrap a drug dealer. During Mr Brehoi's arrest in December 1993, he was the victim of police assault occasioning actual bodily harm requiring nine months medical treatment. He still suffers PTSD in relation to this incident. Moreover, no legal representation was made available for Mr Brehoi during the police interview. Mr Brehoi said he has also been a victim and at times been affected by the chemical reaction from drugs.
Mr Brehoi said the letter to him from Fiona Middleton dated 10 October 1994 in the A documents (A p11), indicates that Ms Middleton did have feelings for him. He said he had saved her life on one occasion and would do anything to protect her and their child. Mr Brehoi also referred to friendly letters from Ms Middleton's sister, Debra (July 1994, A p13) and letters from her father (dated 22 September 1994, A p14, and 5 February 1996, A p16). Mr Brehoi said that at this time in early 1996, he was able to maintain contact with Ms Middleton by telephone. He wanted to reassure Ms Middleton's family of his on-going interest in his daughter, Olivia. He said his relations with her family subsequently seemed to sour as a result of Mr Brehoi's complaining to the Royal Commission into the New South Wales Police.
Mr Brehoi said he will not re-offend with drugs. He acknowledged that he had had a little wine on one occasion while working as a chef at Vaucluse House when he was testing the sauce he was making. However, he was never a drug dealer and, as Judge Karpin in the New South Wales District Court recognised in his judgment, his role was only ever that of a "facilitator" (T22 p92). He said Judge Karpin sent him to prison to learn a lesson and rehabilitate himself. He has done this. Mr Brehoi referred to a Departmental Minute from Phillip Dale, an Executive Officer with the Criminal Deportation Section at Bankstown, about Mr Brehoi (A documents p80) in which Mr Dale said "I can find no evidence that he has ever committed an act of violence let alone been convicted of a violent offence". Mr Dale refers to Mr Brehoi having been the victim of an alleged assault in December 1993 when he sustained a serious injury which Mr Brehoi said required his having treatment for a period of nine months.
With respect to the best interests of Olivia, Mr Brehoi said that a daughter needs contact with her father so that he can provide an appropriate role model. He said there is a wealth of evidence, which indicates the high incidence of sexual disfunctionality resulting from the absence of a male role model when a girl is approaching puberty. If he is denied on-going contact with Olivia, she will also be denied exposure to his rich cultural heritage as one of the Romani people. He would also like to be able to contribute to the costs of his daughter's education. Mr Brehoi said Ms Middleton's father seems to have become involved in seeking Mr Brehoi's deportation in order to resolve the family law proceedings with respect to Olivia. Mr Brehoi contended that he has strong community ties and that if the record of his visitors in prison is examined, this will be confirmed.
With regard to his possible deportation to Romania, Mr Brehoi referred the Tribunal to a letter from the Romanian Embassy dated 14 May 1999 (A documents p102) which states that Mr Brehoi is no longer a citizen of Romania. Mr Brehoi claimed he is effectively stateless if deported from Australia. The letter states that Romania would not accept or consider allowing his entry into Romania as a deportee from Australia without being able to confirm first that he had a verifiable legal claim to Romanian citizenship. Mr Brehoi said if he is deported to Romania, he will have no where to live. As a gypsy, he will not be helped by anyone. He has no family in Romania and has not been there since leaving in late 1979. He said the gypsy population in Romania are still being discriminated against and persecuted. They are beaten, their houses are burnt, and they are chased away from their settlements. Mr Brehoi said that deporting him to Romania would also probably be a breach of Australia's obligations under the Refugees Convention. Mr Brehoi maintained that he is a refugee and a victim of his circumstances. Having been in prison for almost 5 years, he does not trust the situation in Romania.
With regard to the references made by the Respondent to the Tribunal's decision in Bengescu (supra) and in Re Salazar Arbelaez (supra), Mr Brehoi said that if the comments by Deputy President McMahon and Brennan J are taken literally, then a person convicted of drug trafficking would never stand any chance of resisting deportation. Mr Brehoi contended that Direction No. 9 does not support such an interpretation. Nevertheless, Mr Brehoi argued that Direction No. 9 is ultra vires for fettering the discretion of the decision-maker by not allowing the decision-maker to take into account all the relevant circumstances.
In conclusion, Mr Brehoi asked the Tribunal to give due consideration to his humanitarian rights and status. He drew attention to the various educational courses he has undertaken while in prison (for example, A4) and the development of his artistic skills which have seen him being commended for his paintings and, on 20 July 2001, winning second prize in an art exhibition (A3). Mr Brehoi said he has faced and endured many hardships and wishes to live a normal life in the future.
APPLICATION OF THE LAW AND FINDINGSAs stated above, under s 201 of the Act, the Minister may order the deportation of non-citizens who have been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than 10 years. In making the deportation order dated 20 August 1997, the Respondent relied on Mr Brehoi's conviction on 4 August 1995 of the offence of supplying an amount of a prohibited drug namely, heroin, an offence which was committed between 4 August 1993 and 4 October 1993 for which he was sentenced to a fixed term of imprisonment of two years and six months. Evidence of that conviction appears in the T documents (T22). The Tribunal agrees with the Respondent that at the time of the commission of the offence on 4 October 1993, Mr Brehoi's permanent residence in Australia excluding, pursuant to s 204(1), periods during which he was confined in prison, amounts to amounts to approximately eight years and six months. The Tribunal therefore concludes that Mr Brehoi is liable to deportation under s 201 of the Act .
At issue is whether the discretion should be exercised to deport Mr Brehoi. Like other decision-makers, the Tribunal is guided by Direction No. 9 in exercising this discretion. The two primary considerations to be considered in making a decision are set out in paragraph 6:
(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee the best interests of the child or children.
There are two aspects to community expectations noted in paragraph 8 of the Direction:
(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who currently commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
Paragraph 10 identifies three factors as relevant to an assessment of the level of risk to the community and the need for its protection:
(a) the seriousness and nature of the crime;
(b) the risk of recidivism;(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
In addition to the primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases. Paragraph 21 states that "it is appropriate that these matters be taken into account but given less weight than the primary considerations". These matters include:
(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
(b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration).
With regard to the expectations of the Australian community, the Tribunal considered the seriousness and nature of the crimes committed by Mr Brehoi. The Tribunal notes that his criminal record is an extensive one commencing in August 1982 with the most recent convictions being in August 1995. This record includes various minor offences but also a series of more serious offences, particularly those involving the use, possession and supply of heroin for which he has received a number of lengthy terms of imprisonment, including one of four years imprisonment on 4 August 1995. The Tribunal also notes that Mr Brehoi's record includes breaches of recognisances and of parole although, in respect of the breach of parole, Mr Brehoi argues mitigating circumstances relating to the prison inmate with whom he shared a room.
The Tribunal notes that among the examples of offences considered by the Government to be very serious, stated in paragraph 11 of the Direction, are included the distribution and trafficking of heroin which "are of particular concern to the Government and the community". The Tribunal notes the comments made by Judge Karpin in the New South Wales District Court when sentencing Mr Brehoi on 4 August 1995 (T22). Judge Karpin proceeded upon the basis that Mr Brehoi's role was that of "facilitator":
He knew all the people in drugs, he clearly had the ability to set up a drug deal, bringing supplier and purchaser together.
With regard to the risk of recidivism, the Tribunal notes the concern stated by Judge Karpin with regard to Mr Brehoi's "past record of offending and returning to offending despite being given opportunities by the sentencing court". Judge Karpin hoped that Mr Brehoi had "truly come to recognise the error of his ways". The Tribunal accepts Mr Brehoi's evidence that he is no longer taking drugs and has no intention of re-offending with drugs. Nevertheless, Mr Brehoi's past record indicates that there is a risk of his re-offending once released from custody. The Tribunal also recognises with regard to deterrence, that the deportation of Mr Brehoi may discourage or deter others from becoming engaged in similar criminal activity. Finally, when considering the expectations of the Australian Community paragraph 15 of Direction No. 9 sets out "the Government's view that the Australian community trusts non-citizen residents to obey Australian laws" and that it may be appropriate to deport a person who betrays this trust. The Tribunal notes that Mr Brehoi was warned about possible deportation at an interview with departmental officers on 13 December 1991 (T13) and was issued with a formal written warning by letter dated, May 1992 of which he acknowledged receipt on 11 May 1992 (T18).
The second primary consideration to which the Tribunal must have regard is the best interests of Mr Brehoi's child, Olivia. Direction No. 9 states that the decision-maker must determine the best interests of any children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee. Mr Brehoi has one child, Olivia, who is 8 years old. There was no evidence before the Tribunal as to Olivia's current situation, although the Tribunal assumes from the file documentation that she is living with her mother in Melbourne. It appears that Mr Brehoi has not seen or spoken to Olivia since about 1996 and, on 6 April 1998, on an application by Fiona Middleton in the Family Court, the Court ordered that Olivia should reside with her mother who would have sole responsibility for her long term and short term care, welfare and development, and that Mr Brehoi should have no contact with her (Federal Court Application Book p167). It is Mr Brehoi's evidence that he was in prison at the time and had no notice of these proceedings, which he has since challenged. On 8 May 2000, the Registrar of the Court gave leave to Mr Brehoi to restore his application on 14 days notice on his release from prison (Applicant's documents p40). The Tribunal accepts from Mr Brehoi's evidence that he intends to make every effort to resume contact with his daughter and that he is concerned for her general upbringing, education, welfare and development. However, the Tribunal notes his lack of contact with Olivia and that, apart from sending birthday and Christmas presents, he has not contributed towards her support. Given that he has been in prison since 1996, it is, hardly surprising.
The Family Court proceedings initiated by Fiona Middleton and the correspondence in the T documents between solicitors acting on behalf of Norman Middleton, Fiona's father (T35, T41, T42), indicate that Ms Middleton's family, want no further contact with Mr Brehoi. Beyond this, apart from Mr Brehoi's evidence, there is no evidence before the Tribunal to enable it to make a finding as to the nature of the relationship between Olivia and Mr Brehoi or the likely effect on her should Mr Brehoi be deported. The Tribunal notes that Olivia is an Australian citizen, has spent all her life in Australia and, presumably has been brought up as one would expect a child in a normal Australian environment. The Tribunal notes Mr Brehoi's evidence that at the time he and Ms Middleton were living together, she took drugs, including heroin. Mr Brehoi stated that on one occasion he saved her life. The copy letter dated 10 October 1994 from Ms Middleton to Mr Brehoi in prison (Applicant's documents p11), indicates that, at least at that time, there must have been a close relationship between Ms Middleton and Mr Brehoi.
Direction No. 9 also requires decision-makers to have regard to other considerations where relevant. As stated above, these include the degree of hardship which may reasonably be expected by the potential deportee and the degree of hardship to Australian citizens or permanent residents which might reasonably be expected to flow from the deportation. There is no evidence before the Tribunal that, with the possible exception of Olivia, any hardship would flow to Australian citizens or permanent residents as a result of Mr Brehoi being deported. However, the Tribunal accepts that Mr Brehoi would himself suffer significant hardship. He arrived in Australia on 8 March 1980 under the Eastern European Refugee Program and has not returned to Romania since that time. The Tribunal accepts his evidence that he has no immediate family alive in Romania. He also has no home to return to there and there are no obvious job opportunities for him to pursue. With regard to the latter, however, this is largely because he has spent many years in prison. Nevertheless, the Tribunal has no doubt that Mr Brehoi is an intelligent and resourceful man: he has highly developed artistic skills, has become articulate in English, and is likely to adapt quickly to a new situation.
With regard to his ties in Australia, Mr Brehoi's evidence is that he has strong social ties, although there was limited evidence of this before the Tribunal. Apart from his daughter, Olivia, he has no family in Australia and, apparently, no home to go to.
With regard to Australia's international obligations, the Tribunal notes that the situation in Romania has changed significantly since the time of Mr Brehoi's leaving. Although the Tribunal accepts that there has been on-going discrimination against minority groups, including the Romani people, the country report on Romania for 2000, prepared by the Bureau of Democracy, Human Rights and Labor of the US State Department in February 2001 (R1), indicates that significant steps have been taken in recent years towards returning Romania to being a "Constitutional Democracy with a multiparty, bicameral parliamentary system". A Department for the Protection of National Minorities has been established to "monitor the specific problems of persons belonging to ethnic minorities", and that Department is working with a group of Roma Associations in drafting a strategy for the protection of the Roma minority. In the Tribunal's view, this evidence as to the current situation in Romania indicates that while Mr Brehoi might be subject to some discrimination as a result of his being of the Romani population, this would not amount to persecution for the purposes of the Convention Relating to the Status of Refugees 1951. Article 1A of that Convention defines a refugee as a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and not being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.
However, the status of refugee does not continue indefinitely, but can be lost in the circumstances outlined in Article 1C:
C. This Convention shall cease to apply to any person falling under the terms of Section A if:
(1) …
(2) …
(3) …
(4) …
(5)He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;…
In the Respondent's written Statement of Facts and Contentions, the Respondent referred to a number of decisions where the Tribunal found that the circumstances in Romania had changed to an extent that the reasons for persecution had ceased to exist: Re Orbulescu and Minister for Immigration and Ethnic Affairs (AAT W93/168, Deputy President Burns, 1 October 1993); Todea and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 639; and Baias and Minister for Immigration and Multicultural Affairs (AATN95/992), Deputy President Chappell, 15 November 1996). The Respondent therefore submitted that Mr Brehoi now falls within Article 1C(5) of the Convention, because the circumstances in Romania have changed so markedly since the Applicant's departure in 1980, that there is no basis for Mr Brehoi to be regarded as having a well-founded fear of persecution should he be returned to Romania. Mr Brehoi submitted that Article 1C(5) does not apply to him because he no longer has Romanian nationality. However, the Tribunal finds that, relying on the correspondence in the T documents concerning the issue of travel documents to Mr Brehoi by the Romanian Embassy (R2) Mr Brehoi would, on making an application, be issued with travel documents to enable him to return to Romania and resume his residence. The Tribunal concludes that the deportation of Mr Brehoi would not be inconsistent with Australia's obligations under the Refugees Convention.
Ultimately, the Tribunal must weigh up the primary and other considerations. In the Tribunal's view, the greatest weight should be given to the expectations of the Australian community which outweigh the best interests of Mr Brehoi's daughter, Olivia, and the hardship that Mr Brehoi will suffer on being returned to Romania. Thus, the decision under review should be affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 14 February 2002
Date of Decision 4 April 2002
Representative for the Applicant Self representedRepresentative for the Respondent Ms D Watson
0
5
0