Carlson and Minister for Immigration and Multicultural Affairs - [2001] AATA 9

DECISION AND REASONS FOR DECISION [2001] AATA 9

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/679

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SELWYN CARLSON
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis, QC, Deputy President

Date10 January 2001
PlaceMelbourne

Decision The decision under review is set aside.

[Sgd] R N J Purvis
Deputy President
CATCHWORDS
IMMIGRATION – criminal deportation – New Zealand – incest and indecent act – prison sentence served – expectation of Australian community – the best interests of the children – seriousness and nature of crime – risk of recidivism – deterrence – degree of hardship – degree and extent of Applicant's ties with New Zealand – strength of family, social or business ties in Australia – overall environment and job opportunities in New Zealand – views of victim of crimes
Migration Act 1958

REASONS FOR DECISION

The Hon Mr R N J Purvis, QC, Deputy President

The application

This is an application by Mr Selwyn Wilcox Puaho Carlson ("the Applicant"), the holder of a special category sub-class 444 visa seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) on 1 May 2000. The Respondent ordered:
"WHEREAS Selwyn Wilcox Puaho CARLSON is a non-citizen who arrived in Australia on the eighteenth day of March 1989.
AND WHEREAS the said Selwyn Wilcox Puaho CARLSON was convicted at the County Court of Victoria on the twenty-eight day of May 1999 for the offence of incest and indecent act for which he was sentenced to eighteen months imprisonment.
AND WHEREAS at the time of the commission of the said events the said Selwyn Wilcox Puaho CARLSON was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand citizen exempt non-citizen, or a special category visa holder for less than ten years.
NOW I … a delegate of the minister responsible for administering the Migration Act 1958 do hereby order in pursuance of the power conferred upon me by section 200 of the Migration Act 1958, that the said Selwyn Wilcox Puaho CARLSON be deported from Australia." (T8, p133)

In the reasons provided in support of the above order the Respondent stated that the factors taken into account in arriving at the decision for deportation included those in favour of deportation, namely the fact that the crimes which the Applicant committed were very serious and he had "many family members in New Zealand". Those factors against deportation included he having two sons and a step-son living in Australia who together with his wife, a permanent Australian resident, would suffer if he was deported, the risk of recidivism being assessed as low and the fact that he had the support of and employment in the community.
The Applicant in his application for review of the decision of 1 May 2000 stated that the decision was wrong and that "not all factors have been taken into account" (T1, p4).
The hearing
At the hearing of the application for review the Applicant was represented by Mr Geoffrey Steward of Counsel and the Respondent by its solicitor Mr Richard Knowles.
There was admitted into evidence the documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the same being marked T1 to T11. The following documentary material was tendered by the parties and marked accordingly:
Affidavit of Mr Selwyn Carlson, dated 14 November 2000.     Exhibit A
Affidavit of Edith Mae Carlson, dated 14 November 2000.      Exhibit B
Affidavit of Robert Dudfield, dated 15 November 2000.           Exhibit C
Reference of Lindsay Harris for Mr Selwyn Carlson, dated 15 November 2000.     Exhibit D
Affidavit of John Strickland, dated 15 November 2000. Exhibit E
Affidavit of Maria Phoebe Pia Masters, dated 15 November 2000.    Exhibit F
Affidavit of Margret Carlson, dated 14 November 2000.          Exhibit G
Affidavit of Kahutaua Nuku, dated 14 November 2000.           Exhibit H
Psychological report of David Bruce, dated 16 September 2000.      Exhibit J
Psychological report of David Bruce, dated 3 October 2000.   Exhibit J
Psychological report of David Bruce, dated 29 November 2000.       Exhibit L
Parole Order of Mr Selwyn Carlson, dated 16 November 1999.        Exhibit 1

The Applicant, his wife Edith Carlson, a psychologist Mr David Bruce and Bishop Dudfield gave oral evidence upon which they were cross-examined.
Relevant factual situation
The evidence placed before the Tribunal is such as to establish the following as being the relevant factual situation.
The Applicant was born on 7 March 1969 at Murupara, New Zealand, being one of 19 children born to his parents of whom 15 are still living, 13 residing in New Zealand and two in Australia. He first entered Australia in 1986, staying then for a few days, returning in 1989 and then, except for occasions when he attended funerals, reunions and an unveiling in New Zealand has spent the whole of his time in this country.
The Applicant was 20 years of age in 1989 and took some time to obtain employment in Australia. In 1992 and 1993 he was in receipt of social security payments; in 1991 and 1994 he engaged in part-time employment with the assistance of Job Search. He then obtained a position with Harris paper Pty Ltd where, subject to his time in detention he has remained as a "valued employee". He is presently responsible for the management and operation of paper processing machinery. According to a joint managing director of the company:
"…
During Selwyn's time with us he has become a respected team member who by the nature of his work ethic has significantly contributed to the wellbeing of the Company and his fellow colleagues.
From a work perspective Selwyn has continually applied himself to his duties efficiently, diligently, honestly, punctually and courteously. In short he possesses impeccable personal credentials which transpose ideally to a working environment. His model approach is to be admired.
…
When Selwyn was released from prison earlier this year we were very pleased that he returned to work with us and on doing so he openly displayed an unswerving commitment to get his life back in order…
His devoted work ethic had not changed on his return, a good example being the long number of hours worked over a five week period in the endeavour to reach the deadline set for a large delivery…for the Sydney Olympic Games."
(T8, p116, and Exhibit D)
The Applicant met his present wife Mrs Edith Mae Carlson in 1990, she having two young children of a previous association, Paore Dennis and Flora Dennis then approximately three and two years of age living with her. She was separated from the children's father. In 1991 the Applicant and Mrs Carlson began to reside together with the children and continued so doing until 1997. Two children Wi-Taotu and Ruka, both boys, were, during this latter period, born to the Applicant and Mrs Carlson.
In 1996 the Applicant and his wife experienced difficulties in their relationship. The Applicant was consuming excessive quantities of liquor and using marijuana. Mrs Carlson was critical of the Applicant's role as a father, his lifestyle and drinking habits. She threatened to leave him and remove the children. She abstained from sexual activity with him. Between April 1996 and December 1996 the Applicant then unbeknown to Mrs Carlson committed acts of indecency on the step-daughter, Flora, for which on 28 May 1999 he was sentenced to a term of imprisonment.
In 1997 Mrs Carlson separated from the Applicant and went with the children to New Zealand where she remained for a number of months in order to satisfy herself, so she said, as to whether or not she should return to Australia, resume living with the Applicant and structure anew the family. Her decision was in the affirmative. The Applicant had by then, of his own accord ceased consuming alcohol and using drugs. He has not resumed either of these habits. The Applicant and Mrs Carlson married on 21 March 1998.
Flora was at one time seemingly a disturbed young girl, stealing money from her mother and grandparents and generally exhibiting signs of distress. On being questioned by her mother as to her conduct and its possible cause in November 1998, she told her of the conduct of the Applicant in 1996. Mrs Carlson immediately confronted him, the Applicant with relief, so he says, confessing to his interference with Flora. The two then consulted the bishop of their church, the Church of Jesus Christ of Latter Day Saints. According to the bishop, the initial concern of the Applicant and Mrs Carlson was for Flora and helping her work through the situation in which she found herself. The Applicant was willing to do whatever was necessary to assist Flora irrespective of prison being a possible consequence. The bishop advised the parents that they should inform the authorities, but they had to decide what course to pursue. The Applicant according to the bishop was of the view that whatever was needed to be done he would do it "to straighten out with the family and with God". The Applicant did in fact "follow through and is now repairing these aspects of his life".
The Department of Human Services was contacted and in due course, on being made aware of the situation, the police laid charges against the Applicant. He pleaded guilty to the charges and was sentenced to a term of six months on each of three counts with a non-parole period of six months.
Consequent upon the Applicant being charged an intervention order was made against him referable to Flora. Whilst in prison he attended and completed courses relating to the sex offenders program and adult relations. He was released to parole on 30 November 1999, the same expiring on 19 November 2000.
On his release the Applicant returned to his employment but on account of the parole conditions did not resume living with his wife and the children. Since the termination of the parole the Applicant has spent time with Mrs Carlson and the children, has stayed overnight and intends with the support of his wife to reintegrate himself with the children over a period of weeks and reconstitute the family by Christmas 2000.
The Applicant has no other convictions. In January 2000 a Community Correctional Officer reported:
"To date Mr Carlson has been complying with the conditions of his parole. He presents as being committed and motivated to completing his parole and getting his life in order. During supervision appointments he is willing to discuss his offending behaviour and any other issues of concern. He is fortunate to have a support group that consists of family members so as to assist to him readjusting to life with his family within the community."

There is now no restriction on his having contact with the children.
The deportable offence
On 28 May 1999 the Applicant pleaded guilty to one count of incest and two counts of indecent act with a child. He was sentenced to six months on each count, three months of the second count to be served cumulatively with the first count. The total effective term was eighteen months with a non-parole period of six months.
The particulars of the offences as recounted by Flora and noted by the Victorian police were:
"Count 1 – Between the 1/04/96 and 30/09/96, [the Applicant] was in the living room at his home address of 4 Bruce Street, Lalor with his four sleeping children. [The Applicant] then approached Flora DENNIS as she slept. He then placed his hand under her bed covers where he placed his hand under her nightie and inside her underwear clothing. He then proceeded to massage Flora's stomach and groin area before inserting a finger into her vagina where he stroked her clitoris. When Flora awoke [the Applicant] stopped and left the room.
Count 2 – Between the 1/08/96 and 1/12/96 [the Applicant] was again at his home address of 4 Bruce Street, Lalor where he has entered the bedroom of Flora Dennis where she was asleep on the bottom bunk bed as older brother slept on the top bunk bed. [The Applicant] has then placed his hand under her bed covers and inside her pyjamas. He has then placed his hand inside her underwear and massaged the outside of her vagina until she awoke. Flora then woke up and [the Applicant] stopped and left the room.
Count 3 – Between 1/08/96 and 31/12/96, [the Applicant] was again at his home address of 4 Bruce Street, Lalor where he has entered the bedroom of Flora Dennis where she was asleep on the bottom bunk as her older brother slept on the top bunk bed. [The Applicant] then placed his hand under her bed covers. He has then proceeded to massage her vagina area on the outside of her pyjamas. Flora has then woke up and [the Applicant] has stopped and left the room."
(T8, pp65-66)
In the course of his reasons for sentence the sentencing judge inter alia stated:
"All the offences are serious. You were in a position of trust with regard to this young girl and you abused that trust. The offences attract, as was admitted by your Counsel, an immediate custodial disposition. That is because of aspects of general deterrence and to a lesser extent in your case, specific deterrence.
In determining an appropriate sentence I have had regard to the following matters by way of mitigation: firstly you have pleaded guilty to these offences…secondly I'm satisfied that you have shown general remorse for your actions. That fact is clearly demonstrated by the letter I received in evidence from the victim's mother. In addition you made full admissions to the mother of the child at the time that the offences were discovered and subsequently made the same admissions to police officers.
Thirdly, you are a person without prior convictions. You are one of nineteen children of your mother. You are a Maori by birth. The fact that you have not offended until this time is not without significance. It indicates a person who has otherwise been a law abiding citizen.
Fourthly, you were affected by alcohol at the time of the offending. That does not excuse your conduct but it does indicate why you acted on those occasions. Since those offences were brought to notice you have abstained from alcohol.
Fifthly I believe that as a result of the matters of have referred to (sic) that your prospects of rehabilitation are substantial. You have been regularly employed over a period of eight years. Your employer has indicated that they will accept you back as an employee. You have continued to support your family despite orders made that you not associate with them apart from access visits to your sons. As I understand the situation you will be gradually reintroduced into the family by the authorities responsible for your management. Your partner, now your wife, supports that process.
…" (T8, pp68-70)

The relevant statutory provisions and ministerial direction

The Migration Act 1958 ("the Act") provides as here relevant:
Section 200. Deportation of certain non citizens
The Minister may order the deportation of a non citizen to whom this division applies
Section 201. Deportation of non-citizens in Australia for less than ten 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:
(1) had been in Australia as a permanent resident:
(A) for a period of less than ten years; or
(B) for periods that when added together total less than ten years; or
(2) was a citizen of New Zealand who had been in Australia as an exemption citizen or a special category visa holder:
(A) for a period of ten years as an exempt non citizen or a special category visa holder; or
(B) for periods that when added together total less than ten 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

On 21 December 1998 the Minister issued a General Direction under section 499 of the Act relating to Australia's criminal deportation policy and criminal deportation under section 200 of the Act. The direction provides guidance to decision-makers in considering the making of deportation decisions under sections 200 and 201 of the Act. The general direction states that the object of the Act is to regulate in the national interest the coming into and presence in Australia of non citizens. To facilitate this object the Minister has been given a discretion to deport from Australia those non citizens who have abused the privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the Parliament and the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it.
The Direction stipulates primary considerations and other considerations which are to be taken into account in the making of a decision referable to deportation. The Direction states that 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, and
"In reaching 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 6(6) and two other common considerations are set out in paragraph 7(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 deportees; and
(b) the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation."

Expectations of Australian community

There are two aspects to community expectations noted in the Direction, namely the expectation that the community will be protected and not put at risk and the expectation that non citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
The factors relevant to an assessment of the level of risk to the community and the need for its protection are the seriousness and nature of the crime, the risk of recidivism and the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
As here relevant examples of offences that are considered by the government to be very serious include sexual assaults, whether or not accompanied by other violence and especially where there has been more than one sexual offence and 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.

It is the government's view that the previous general conduct of a person liable to deportation and the total criminal history are highly relevant to assessing the risk of recidivism. 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 are factors relevant to this assessment.
There is no issue in this matter that the offences committed by the Applicant were serious and regarded as such by the Australian community. Indeed they are abhorrent to it. Thus it is a reasonable expectation of the community that a person who engages in such conduct might well be liable to deportation. Such deportation would be in aid not only of recognising such conduct but in protection of the community and to ensure that the like does not happen again to, in this case, a child living in Australia. Thus it is relevant in this matter to consider the risk of the Applicant re-offending. The Applicant himself has said that his likelihood of recidivism is low. "I feel that I have through the rehabilitation programs come to understand what I have done and am sorry for my actions. Furthermore I am aware of the consequences of what may occur and I am remorseful for what I have done." He notes that he has completed sex offender courses, has given up smoking and drinking for over two years and has "made a genuine attempt at rehabilitation. I am not required to attend any further rehabilitation courses…"
Mrs Carlson states that she firmly believes the Applicant is a "totally rehabilitated man and that the prospects of him re-offending are virtually non-existent". She said that since revealing the offences to her the Applicant "has done a great deal to change his previous behaviour not only for his benefit but for that of his family who he loves dearly". She says that the Applicant has "displayed an honesty, openness and communication with me which previously was not the case". He is genuinely remorseful for what he did as he has been from the outset and has complied with every direction of the sentencing judge and the parole board.
Bishop Dudfield, bishop of the Heidelberg ward in the Church of Jesus Christ of Latter Day Saints, has known the Applicant since before he was sentenced for the offences. He has regularly attended the Bishop's congregation both prior to and following his period of incarceration. The Applicant has expressed to the Bishop a "desire to embrace Christianity" and since his release from parole has been baptised into the church. Bishop Dudfield says that pending sentence he accompanied the Applicant on occasions when he was required to report to the police as a condition of his bail and from his observations of the Applicant feels that he is "completely trustworthy and will abide by the laws of the land…[the Applicant] is ashamed of what he has done and the hurt he has caused his family…I believe his involvement with the church is due to his desire to become a better person and to make sure he never offends again. I am confident he will not offend again…" The Bishop spoke of the shame and acceptance of the wrongfulness of his actions by the Applicant and "it was the starting point of his considerable rehabilitation which has been total and faultless from that day onwards. He has benefited greatly from counselling and I personally am as committed to his rehabilitation as he is which he has demonstrated to my complete satisfaction. … The community has no reason to fear his continued presence in Australia and will be the richer for reclaiming a man who clearly has much to offer our society and his family."
Not only did the joint managing director as has already been noted in these reasons speak favourably of the Applicant but a fellow employee spoke of the Applicant confiding in him and showing " a lot of remorse for what he had done. He has never tried to avoid the truth or responsibility of any of his actions." The employee spoke further of the support that is forthcoming for the Applicant and that his adverse conduct was uncharacteristic. Members of the Applicant's family also spoke of their affection for him, of belief "that there is little or no chance" of the Applicant ever offending again and that "since he offended he has learnt a great deal about himself and that although he has always loved his family he could not contemplate ever doing the wrong thing by them again and only wishes to care and provide for them".
The Applicant consulted a Mr David Bruce, forensic psychologist, as did Mrs Carlson and the children. In a report of 16 September 2000 the psychologist, after reciting the history as recounted to him, commented as his opinion that the Applicant:
"…appears to have rehabilitated completely from a period in his life when a combination of alcohol and drugs caused him to commit the present offences. He has shown an ability to benefit maximally from the therapeutic opportunities that have been offered. He has shown a fully responsible attitude to his obligation to continue with financial support for his children even if he is excluded from their company. He appears to have developed a level of social maturity that is impressive.
…He has shown an ability to rehabilitate after a crisis and to be hard working and responsible. It is extremely unlikely that he will re-offend in the way he did and his record of no convictions indicates that he is fundamentally a law abiding citizen."
(Exhibit J)
In his report of 29 November 2000 the psychologist stated that "with regard to the possibility of re-offence, while one can never predict human behaviour with total accuracy I believe that the risk with [the Applicant] is as low as it could be". In the course of his oral evidence before the Tribunal, Mr Bruce stated that he thought the Applicant was fully rehabilitated, he was impressed by this fact and did not believe the Applicant was a risk to the community. He is as sure as he can be that the Applicant did not present a risk to his children and he doubts that the Applicant ever was a risk to children generally. He referred to the circumstances of the offences as "this unfortunate aberration"; the Applicant does not have a primary sexual interest in minors.
On the basis of the evidence before it, the Tribunal is satisfied that in this matter the risk of the Applicant re-offending is extremely low.
One of the factors to be considered in the making of a deportation decision is the likelihood of the deportation preventing or prohibiting the commission of like offences by other persons. Thus it is relevant for the Tribunal to consider in the context of the nature of the offence whether deportation of the Applicant may be expected to deter other non-citizens from committing similar offences. The circumstances of the present matter are singular. The facts referable to it have been set forth earlier in these reasons. The Tribunal does not consider that deportation in the circumstances of this matter would have a deterrent effect so far as the committing of a similar offence is concerned. The nature of the conduct, the circumstances in which it took place all militate against this being a significant factor.
It is true to say, as has earlier been mentioned, that the offences committed by the Applicant are abhorrent to the community and that a non-citizen perpetrator such as the Applicant may well be regarded as one who should not be allowed to remain in the community. The Applicant did betray a trust vested in him, but the Tribunal does not discern a serious likelihood that he is a continuing threat or will be a future threat to any member of his family or to the community. In light of the facts peculiar to this matter the Tribunal does not consider that the Australian community would expect that the Applicant would be deported, especially having regard to the other relevant considerations.
The Best Interests Of The Children
It is the government's view, as noted in the Direction, that a decision-maker must determine the best interests of any children aged less that eighteen years who are in a parent-child or other close relationship with the Applicant.
As noted in the Direction:
"18 It is the government's view that in general the starting point for any consideration of the best interests of the child would be that the child's best interests would be served if the child remains with its parents. Counter-veiling considerations which may point to the child's best interests being served by separation from the potential deportee include, but are not limited to:
(a) Any evidence that the potential deportee has abused or neglected the child in any way, including physical, sexual, and /or mental abuse; or
(b) Any evidence that the child has suffered or experienced any physical or emotional trauma arising fro the potential deportee's unlawful conduct
…
19 It is the government's view that when considering what are the best interests of the child or children regard should be had to:
(a) The nature of the relationship to potential deportees;
(b) Whether the child is an Australian citizen or permanent resident;
(c) The likely effect that any separation on the potential deportee would have on the child or children;
(d) The likely effect on the child or children of leaving Australia if the parents decided to take the child or children with them from Australia;
(e) The impact of the potential deportee's prior conduct on the child
…
20 It is the government's view that considerations which aid in considering the above factors include:
(a) The age of the child;
(b) The time that the child has spent in Australia;
…
(d) Any cultural barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances
…
(f) The child's degree of emotional and psychological dependence on the potential deportee; and
(g) The amount of time that the potential deportee has actually spent with the child."

The Applicant has recently resumed contact with the four children including Flora. The evidence before the Tribunal is to the effect that the children and Mrs Carlson are anxious that the Applicant be allowed to stay in Australia and that the family resume its life together as a family unit. If the Applicant should be deported Mrs Carlson does not intend travelling to and living in New Zealand with him as she does "not believe that it would be in the best interests of my children to live there but I also know that they would be shattered at not being with their father". She says that she and the children and
"most importantly Flora have forgiven him for his sins and as counselling and access progresses we anticipate that we shall resume our lives as a complete and loving family".

She says that Flora wants to see the Applicant, that the two eldest children love him

"as if he was their natural father…he was always more of a father to them than their real dad…I do not believe they could cope with losing two fathers so early in their lives".

Mrs Carlson says that since learning of the offences Flora has been her main priority and she still is. She says that she would not contemplate reconciling with the Applicant or having him back home if she thought that this would in any way be harmful to Flora. She says that she is sure that this is not the case.

The Tribunal is satisfied, on the basis of the evidence before it, that if the Applicant is deported from Australia the four children would be adversely affected. The boys have maintained contact with the Applicant whilst he was on bail and during his time in prison. Flora by reason of the Intervention Order and parole conditions was not able to do so. However, since the end of the parole period, the Applicant has spent time with all of the children and their reaction to him has been most favourable. It is true to say that in the event of deportation the family would be divided.
The Applicant, whilst he has firm employment in Australia, has stated that he anticipates difficulty in obtaining work in New Zealand, as a consequence of which his ability to provide financial assistance to the family would be reduced. Mrs Carlson's decision to remain in Australia is governed by a number of factors amongst which are the effect relocation, new schooling and new social contacts would have on the children, and her apprehension at being required to reenter the Maori culture in New Zealand. She regards the latter as not being in tune with the best interests of the children.
Those interests would not be served by the making of a deportation order.
Other considerations
The Direction states 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. They include the degree of hardship which may be suffered by the potential deportee and the degree of hardship to any Australian citizen or permanent resident including the potential deportee's family other than children whose best interests are a primary consideration.
With regard to hardship which may be experienced by the Applicant the factors to be considered include an assessment of the strengths of his ongoing marital relationship, the degree and extent of the Applicant's ties with New Zealand, the strength of his other family, social or business ties in Australia and the subjective social and economic situation in New Zealand including the overall environment and job opportunities. In relation to hardship to any Australian citizen or permanent resident factors to be considered include the effect deportation would have on Mrs Carlson, whether she would leave Australia with her husband and the effect on other family members, social ties and business associates. It is said that the views of the victim of the crimes committed by the Applicant are also relevant.
The report of Mr Bruce, the psychologist, notes the adverse effect deportation would have on the Applicant's family and on the Applicant. He has shown contrition, remorse and regret for his conduct and has now resumed his place in the affection of his family and the respect of his employer. Deportation would alienate the Applicant from his family, would deprive him of his employment and thus prevent him from providing necessary financial support. As he said in his evidence before the Tribunal, deportation would affect him financially and he would be unable to support his family. Preparing for the worst, as he put it, he has made enquiries and has been told that no work is available for him in New Zealand, he having no other qualifications or experience than that which he has obtained with his present employer. He says that he has "not got on well" with his extended family in New Zealand, there was a lot of controversy when he left and that he has no desire to live with them. Indeed, seemingly there is enmity towards him, he being considered "a disgrace to our family". He says that he left the Maori lifestyle in New Zealand "long ago". The Applicant's employer assisted him financially in paying his legal costs, and in the event of his deportation he would be unable to discharge this debt.
The Applicant says that he has not had contact with his brothers and sisters in New Zealand for approximately five years and does not have a very good relationship with his brothers. He was last in New Zealand in 1996 when his father died and Mrs Carlson was last in New Zealand in September 2000 at her mother's wedding. Mrs Carlson's mother, however, resides in Australia and the majority of her family also lives in Australia. The significant members of the children's extended family reside in Australia. As earlier mentioned when discussing the effect deportation would have on the interests of the children, Flora as well as the boys would be affected emotionally in the event of deportation. According to Mrs Carlson, Flora has progressed well at school and all the children "have a future, friends, church, goals and their family". Mrs Carlson spoke of the absence of work opportunities in New Zealand, the absence of choices, lifestyle being completely different and the fact that they would be expected to live "the Maori cultural way and they are not used to it". The two sisters of the Applicant who live in Australia also noted the absence of contact that they have with relatives in New Zealand and the difficulty that would be experienced by the Applicant in re-establishing himself in that country. They each also spoke of the suffering and "emotional and financial turmoil" that would be experienced in the event of deportation by "his entire immediate family". Indeed one sister spoke of the "destruction of the family and nobody would derive anything other than sadness and pain" from a deportation.
The psychologist, Mr Bruce, also made mention of the effect of deportation on the Applicant, his wife and children, noting that deportation would seem to present "a serious risk of disrupting a family which has successfully emotionally reunited after massive stress. Further to disrupt the children would be potentially seriously damaging to them". It was noted that Mrs Carlson and the children are fully established and committed to Australia, "to disrupt them would be to punish the children and potentially to damage a family unit that would soon be fully reunited and healed". The psychologist further stated:
"Deportation of [the Applicant] would place an enormous burden on this family…
The attendant consequences of total life disruption for the mother and older siblings would have a very negative impact on them. The impact on the older two and the mother would be bound to cause emotional and social disruption throughout the family for a very long time. Perhaps as a family unit they would never recover – surely not the aim of so called rehabilitation. This situation makes it clear how much psychologically our system for punishment of offences like this is totally "two-dimensional" and fails to address the enormous pain and punishment inflicted on the family through the sentence imposed on the offender. This has already been severe. To deport the father would only exacerbate it and that seems to be a reason for allowing him to remain in Australia, even more persuasive than [the Applicant's] manifestly complete personal rehabilitation and potential value to our community".
(Exhibit K)
The Bishop, in his evidence, noted the devastating effect, as he saw it, of deportation on the children and the consequential difficulties that would be imposed on Mrs Carlson in her endeavour to bring up the family by herself. The Bishop's concern was "for the whole family" and in the event of the Applicant re-entering the family unit he had no reason for concern as to its future. He spoke of the strong network existing within the church and the support that has been and would be forthcoming in aid of re-uniting the family. He spoke of the value of the father and the mother being both present in the family unit.
Submissions and decision
On behalf of the Respondent, emphasis was laid on the expectation that in the event of the Applicant being allowed to remain in Australia the community might be put at risk. The nature of the offences was clearly very serious, and notwithstanding that the term of imprisonment imposed was relatively short, nevertheless being custodial reflected this serious nature. The characteristics of the crime committed were important, incest and indecent acts with a child being abhorrent by their very nature and representing an abuse of trust of a child for whom the Applicant had responsibility as a parent and care giver. Whilst the risk of recidivism was accepted as being low in the relevant circumstances the Tribunal, it was said, should be satisfied that there was "no more than a minimal risk" of recidivism. The Tribunal is so satisfied, as has already been mentioned, that the risk of recidivism is minimal.

Deportation, it was said, would act to deter other non-citizens from committing sexual offences against children. The Tribunal does not consider that the deterrent aspect is overly significant in this matter. The facts peculiar to it are such that like circumstances may well not often exist.
The expectation of deportation, in light of the nature of the offences was also considered to be an aspect that should weight significantly in the balancing exercise and in arriving at an appropriate decision. This is undoubtedly so. However, this expectation is to be assessed in the light of all of the circumstances the nature of the offence not to be considered in isolation. The Tribunal does not consider that the Australian community, when appraised of the relevant facts, would assess the nature of the crimes to be such as to outweigh the other relevant considerations.
It was said that the best interests of the children would be served by the Applicant not having contact with them. The evidence before the tribunal indicates otherwise. Mrs Carlson has no intention of leaving Australia. If the Applicant be deported the family would remain divided and the children would be adversely affected to a measurable degree. They would suffer emotionally, financially, and the possible loss of a father to the family could have a psychological impact on the relationship existing between the siblings. It is unrealistic to contemplate Mrs Carlson and the children visiting New Zealand on a regular basis. The contact between the Applicant and Mrs Carlson and the children would in the event of deportation be negligible.
The Applicant does not have a bonding with relatives in New Zealand and has distanced himself from the Maori culture.
The Tribunal has earlier in these reasons discussed the two primary considerations. The first of such considerations namely that relevant to the expectations of the Australian community, the seriousness and nature of the crime, the risk of recidivism and aspects of general deterrence are appreciated and are to be given appropriate weight. The Tribunal is satisfied that the children's interests are such that deportation would be very detrimental to their welfare. The Tribunal agrees with the submission put by Mr Steward of Counsel appearing on behalf of the Applicant that apart from the nature of the offence and its consequences, all the factors are in favour of non-deportation. The community would not be put at risk. It would be most destructive for the Applicant and for the Applicant's family for him not to remain in Australia. In this matter the interests of the children and the adverse consequences of deportation on the family far outweigh the other primary consideration and any other adverse relevant consideration. For these reasons the decision under review should be set aside and the Applicant allowed to resume his domestic contact with Mrs Carlson and the children and over a period, short though it may be, resume his place as a member of the family.
The decision under review is set aside.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the decision and reasons for decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  30 November 2000, 1 December 2000
Date of Decision  10 January 2001
Counsel for the Applicant        Mr G Steward
Solicitor for the Respondent    Mr R Knowles