Cebreros and Minister for Immigration and Multicultural and Indigenous Affairs

CATCHWORDS – IMMIGRATION – criminal deportation – whether offences serious – whether risk of recidivism – degree of deterrence to others – best interests of the child – hardship to Australian citizens or permanent residents – decision set aside

JURISDICTION – whether jurisdiction to review deportation order already executed – decision purported not to be reviewable but affected by Singh v Minister for Immigration and Multicultural Affairs – whether failure to advise review rights affects validity – whether Tribunal may exercise its powers under s. 43 Administrative Appeals Tribunal Act 1975 – whether application futile – jurisdiction to review decision.

Migration Act 1958 ss. 4, 5, 82, 200, 201, 206, 253, 351, 499, 500 and 502
Administrative Appeals Tribunal Act 1975 ss. 3, 25, 29, 37, 42B and 43
Migration Regulations 1994 s. 31, Schedule 5 Special Criterion 5001 clauses 100.324, 428.324 and 560.322,

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426
Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803, 98 FCR 371
Director General Security v Sultan and Another (1998) 90 FCR 334
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355

DECISION AND REASONS FOR DECISION [2002] AATA 213

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/238
GENERAL ADMINISTRATIVE DIVISION     )

ReAILEEN CEBREROS
Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                  Miss S A Forgie (Deputy President)
Date:  3 April, 2002
Place:  Adelaide

Decision:The Tribunal

1.sets aside the decision of the respondent dated 8 February, 2000; and
2.substitutes a decision that the applicant not be deported from Australia.

.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 29 June, 2001, the applicant, Ms Aileen Cebreros, applied for review of a decision of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), dated 8 February, 2000. That decision was to the effect that Ms Cebreros' partner, Mr Bernard Lesi, was liable to be deported pursuant to s. 201 of the Migration Act 1958 ("the Act") and should be deported under s. 200. Notice of that decision was given to Mr Lesi on 13 April, 2000.

At the hearing, Mrs Cebreros was represented by Mr Cole of counsel and the Minister by his solicitor, Mr Leerdam. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents") were admitted in evidence. Also admitted were various documents to which I will refer in the course of these reasons and a video depicting certain aspects of life in Albania. Oral evidence was given by Ms Cebreros in support of her case together with Mr Lesi, Ms Lucylyn Hidend and Ms Helen Tilly. No oral evidence was given in support of the Minister's case.

THE ISSUES

There were two issues in this case. Resolution of the first determined whether or not the Tribunal had jurisdiction to consider the substantive issues raised by the review of the Minister's decision i.e. whether Mr Lesi should be deported under s. 200 of the Act. That issue arose because, for reasons which I will set out below, Ms Cebreros lodged her application for review after Mr Lesi had been deported from Australia. If the Tribunal has jurisdiction to proceed with the review, the second issue is whether Mr Lesi should be deported under the Act.

THE TRIBUNAL'S JURISDICTION

A consideration of this issue must begin with a recital of the events that led to Ms Cebreros' application being heard after Mr Lesi has been deported. As I have said, Mr Lesi was notified of the Minister's decision on 13 April, 2000. Ms Cebreros did not apply to the Tribunal for review of that decision until 29 June, 2001 and so well outside the time permitted by s. 29 of the AAT Act. There were, however, good reasons for that and they ultimately led to the Tribunal extending the time within which her application could be made. That order was made on 17 July, 2001.

At the time he made the decision that Mr Lesi be deported from Australia, the Minister also made a declaration that, because of the seriousness of the circumstances giving rise to his decision to deport Mr Lesi, it was in the national interest that he be declared an excluded person in accordance with s. 502(1) of the Act. That section applies only in situations, as had happened in this case, in which the Minister has personally made a decision under, among others, s. 200. If he decides that "… because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person", the Minister may declare a person to be an excluded person. He does so by including a certificate to that effect as part of his decision under s. 200. The Minister included a certificate to that effect when he made the decision under s. 200 and both were dated on the same day i.e. 8 February, 2000.

Section 500 provides that, other than a decision to which a certificate under s. 502 applies, an application may be made to the Tribunal to review a decision made by the Minister under s. 200. Mr Lesi understood that he was thereby prevented from seeking review of the merits of the decision to deport him but he was not prevented from seeking review of the Minister's decisions in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977. O'Loughlin J reviewed both the Minister's decision to deport Mr Lesi and his decision to issue the certificate. His Honour dismissed Mr Lesi's application after concluding that there was evidence of a sufficient nature to warrant the findings made by the Minister and to prevent the Court from interfering with them. O'Loughlin J gave his judgement on 4 September, 2000. Mr Lesi was taken into custody and, accompanied by two police officers, taken from Australia to Albania on 4 October, 2000. Ms Cebreros and their two children travelled with them together with Ms Cebreros' sister, Ms Hidend.

On 19 October, 2000, a Full Court of the Federal Court handed down its judgement in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426 (Wilcox, Spender and Emmett JJ). The Court considered whether a document purporting to be a certificate issued under s. 502 was properly made. It decided that it had not been and so was not a certificate to which s. 502 applied. That document was expressed in the same terms as the document purporting to be a certificate under s. 502 signed by the Minister in relation to Mr Lesi. It follows from the Full Court's judgement in Singh that the document given to Mr Lesi was not a certificate to which s. 502 applied. It could not, therefore, exclude his right to have the Minister's decision under s. 200 reviewed by the Tribunal under s. 500.

On 27 February, 2001, the Minister's Department, the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"), wrote to Mr Lesi advising him that, as a result of the Full Court's judgement in Singh, the certificate given to him under s. 502 might be invalid. The letter went on to advise him that the Minister's decision under s. 201 might now be able to be reviewed. An application for review could only be made by a person who is an Australian citizen or by a person who is a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law and whose interests are affected by the decision. The letter concluded by advising Mr Lesi that "Irrespective of the outcome of an AAT review, you should be aware that you may be unable to return to Australia due to Special Return Criteria 5001." (T documents, page 274) Ms Cebreros then lodged an application within the extended time permitted by the Tribunal.

In order to understand the Department's reference to Special Return Criterion 5001, it is necessary to have regard to the criteria that determine whether or not a visa is issued to a person. Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 ("the Regulations") (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). Some criteria must be satisfied at the time that a person makes an application for a visa and others at the time of the decision. The Regulations prescribe in relation to each visa the criteria that an applicant must satisfy to obtain that visa. The prescribed criteria are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Additional criteria applicable to unlawful non-citizens and certain bridging visa holders are prescribed under Schedule 3, public interest criteria in Schedule 4 and special return criteria in Schedule 5.

Special Return Criterion 5001 provides that:

"The applicant is not a person who left Australia while the subject of a deportation order under:
(a)section 200 of the Act; or
…"

An examination of Schedule 2 to the Regulations reveals that Special Return Criterion 5001 must be satisfied in relation to some visas (e.g. student visa (clause 560.322), religious worker visa (clause 428.324) and spouse visa (clause 100.324). It need not be satisfied in relation to others (e.g. medical treatment (short stay) (subclass 675)).

At the beginning of the hearing, Mr Leerdam submitted on behalf of the Minister that I should not hear Ms Cebreros' application on the merits but dismiss it. He did so on the basis that it was a frivolous or vexatious proceeding within the meaning of s. 42B of the AAT Act. Section 42B(1) provides that:

"Where an application is made to the Tribunal for the review of the decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction."

The foundation of Mr Leerdam's submission centred on Mr Lesi's deportation. Section 206 provides that a person whose deportation has been ordered must be deported unless the Minister revokes the order. Section 82(4) of the Act provides that a visa ceases to be in effect when the person to whom it was granted or a person included in it (i.e. the holder of the visa; s. 5(1)) leaves Australia because a deportation order made under s. 200. Mr Leerdam submitted that any visa for which Mr Lesi may apply and which may be granted to him while he is outside Australia, requires that he satisfy Special Return Criterion 5001 or requires that he holds another visa that requires that he satisfy that criterion. As he cannot meet this criterion, he will never be able to obtain a visa. Consequently, even if Ms Cebreros were successful in her application, it would make no difference to Mr Lesi's ability to return to Australia. He will never be able to return.

At the conclusion of the hearing, Mr Leerdam submitted that, having regard to the framework of the Act and of s. 43 of the AAT Act, the Tribunal may only exercise its powers under s. 43 when it is in force. If a deportation order has been revoked, there is no longer a decision that the Tribunal may review. If a deportation order has been executed, there is no longer a deportation order that is in force and so no decision may be reviewed by the Tribunal. Mr Leerdam developed his submission by pointing first to s. 82(4) of the Act. He relied also on s. 206(2) which provides that the validity of a deportation order is not affected by any delay in its execution. Among other matters, s. 253 authorises the detention of a person in relation to whom a deportation order is in force. A deportee may be kept in immigration or other detention pending his or her deportation, until he or she is placed on board a vessel for deportation, at any place at which the vessel calls after deportation or on board the vessel until its departure from its last place of call in Australia (ss. 253(1) and (8)). Finally, he pointed to the definition of "deportation order" in s. 5(1) of the Act. It provides that a "deportation order means an order for the deportation of a person made under, or continued in force by, this Act". The net effect of these provisions, Mr Leerdam submitted, is that a deportation order is obsolete once it is executed. It ceases to be in force and the visa authorising Mr Lesi's presence in Australia has ceased to exist. He relied on the judgement of the Full Court in Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803, 98 FCR 371 (Beaumont, Mathews and Emmett JJ) when it said:

"… the plain object of the present statutory scheme is to avoid these difficulties by defining the relevant events in which the authority to detain will lapse, as the execution of the deportation order or its earlier revocation. Short of their occurrence, the deportation order is 'in force' for the purposes of s 253(1), and the deportation is 'pending' for the purpose of s 253(8)(a). Until one of these events occurs, the authority to detain will subsist." (paragraph 13, page 374)

Finally, Mr Leerdam submitted that the Tribunal has no power to declare a deportation order invalid, to order any other declaratory relief or to give any consideration to any other visa application that Mr Lesi may make in the future.

It is with Mr Leerdam's second submission that I should commence my consideration. The Tribunal may only review a decision if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This is the effect of s. 25 of the AAT Act. Section 25(1) provides that:

"An enactment may provide that applications may be made to the Tribunal:
(1)for review of decisions made in the exercise of powers conferred by that enactment; or
(2)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment."

The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made (s. 25(3)).

It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review specified decisions. That power is given by s. 25(4) which is the necessary corollary to s. 25(1). It provides:

"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."

A reference in the AAT Act to a "decision" includes:

"(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing." (s. 3(3))

The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision. The first is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decision.

In this case, the decision of which review is sought is a decision of the Minister under s. 200 that Mr Lesi be deported because he is a non-citizen who has been convicted in Australia of an offence, at the time he committed the offence he had been in Australia as a permanent resident for less than 10 years or for periods totalling less than 10 years and he was sentenced to a period of not less than one year in relation to that offence. That is to say, the decision of which review is sought is a decision made under s. 200 because of circumstances specified in s. 201. As it happens, that decision has been implemented but I will return to that later. Section 500 of the Act provides that an application may be made to the Tribunal for review of decisions specified in the section. Among those decisions is a decision of the Minister under s. 200 because of circumstances specified in s. 201 (s. 500(1)(a)). That is a decision of the type referred to in paragraph (a) of the definition of a "decision" in s. 3(3) of the AAT Act. Reading s. 25 of the AAT Act and s. 500 of the Act together, it follows that the Tribunal has been given jurisdiction to review deportation decisions made under s. 200 of the Act because of circumstances specified in s. 201.

What of the fact that the deportation order of which Ms Cebreros seeks review has been implemented? There is nothing expressly stated in s. 500(1)(a) to the effect that the Tribunal may only review a deportation order made under s. 200 if it has not been implemented. I do not consider that the passage from the judgement of the Full Court of the Federal Court in Vo v Minister for Immigration and Multicultural Affairs requires me to reach that conclusion. It was dealing with a quite different situation. A deportation order had been made in relation to Mr Vo at a time when he was still imprisoned and serving a sentence. It was decided by the Department that, when he became eligible for parole, he would not be transferred to an Immigration Detention Centre but would remain in a State prison. When he had been detained on that basis for nearly a month, Mr Vo wrote to the Department to be released from immigration detention on the basis that the Vietnamese Government was not interested in allowing him to return to Vietnam. His request was refused and he sought review of the decision under the ADJR Act.

At first instance, Madgwick J had dismissed Mr Vo's application. Mr Vo argued on appeal that his Honour had been in error in holding that his detention should be regarded as having taken place "pending deportation" within the meaning of s. 253(8)(a) of the Act. In his reasons, he had inferred that delay in implementing a deportation order could be relevant in deciding whether or not the detention itself was legally valid. He had referred to s. 253(8). He also referred to s. 253(9), which provides that the Minister or Secretary may, at any time, release a person who is in detention under s. 253.

In considering Madgwick J's reasoning, the Full Court first addressed the difficulties to which it later referred in the passage set out above (see paragraph 13). It said:

"… It is true that the power to detain is available only whilst the deportation order is 'in force' (s 253(1)); and that this criterion is reflected in the reference to the position 'pending deportation' in s 253(8)(a). But there is every reason to suppose that this was intended to refer to the state of affairs existing between the time of the making of the deportation order and its execution (unless previously revoked). These are all matters of formal record which are readily ascertainable by all concerned. If the test were otherwise, that is a test of a question of degree, whereby the authority to detain is lost after the lapse of a particular amount of time, serious practical difficulties would arise: it would not be possible to identify the exact point of time when the authority is to be treated as having lapsed, in the absence of any formal process to determine when the lapse did occur." (page 374)

Reading both passages and the judgement as a whole, it is clear that the Full Court was confining its consideration only to the circumstances in which detention of a person under the Act is valid. The upshot is that detention is only valid when a deportation order is in force and that person's deportation is pending. Once the deportation order has either been revoked or has been executed, it is no longer in force, deportation is no longer pending and detention under s. 253 is not valid.

Having carefully referred to a situation in which "an order for a deportation order is in force" in s. 253(1) in relation to detention of a deportee, the Act is silent on the issue of whether the deportation order is, or is not, in force, when review by the Tribunal is in question. Reference is simply to "decisions of the Minister under section 200 because of circumstances specified in section 201" in s. 500(1)(a). On its face, Parliament's failure to specify that the decisions must be "in force" or yet to be executed or implemented suggests that it matters not whether they have, or have not, been executed or implemented.

That conclusion is not contradicted by reference to the definition of a "deportation order" in s. 5(1). Certainly, that definition refers to a deportation order continued in force by the Act but that does not lead to the conclusion that the deportation order must be "in force" if the Tribunal is to have jurisdiction to review it. Some meaning must be given to the word "or" used in the definition of a deportation order. A deportation order is an "…order for the deportation of a person made under the Act, or continued in force by, this Act" (emphasis added). It is either made under the Act or continued in force by it. What is meant by a deportation order continued in force by the Act becomes clear when regard is had to the Act in the form in which it was originally passed. The definition of a "deportation order" has not changed since that time. As enacted at that time, ss. 4(1), (2) and (3) provided that the Acts referred to in those provisions were repealed but s. 4(4)(b) provided that, notwithstanding their repeal:

"an order for the deportation of a person in force under the Immigration Act 1901-1949 immediately before the date of commencement of this Part remains in force and this Act applies to and in relation to the order as if it had been made under this Act."

The history of the legislation reveals, therefore, that the reference to a deportation order's being continued in force is not a reference to its not having been executed or implemented but to its having been made under earlier legislation and continued in force by virtue of the Act.

The fact that a decision has been executed or implemented does not mean that there is no longer a "decision" within the meaning of s. 3(3) of the AAT Act as Mr Leerdam would have me conclude. In his submission, he equates the position reached when the Minister has withdrawn a deportation order under s. 206 with that when a deportation order has been executed or implemented. In both, he submits, there is no decision for the Tribunal to review and so no decision that the Tribunal is able to affirm, vary or set aside and remit under s. 43 of the AAT Act. In the case of revocation, I agree with that submission. There was a decision at the time that it was made but the effect of revoking a decision is that there is no longer a decision. By way of contrast, executing or implementing a decision does not mean that there is no longer a decision. If it were otherwise, the very act of execution or implementation would take away the basis upon which the act or execution or implementation is validly taken i.e. the decision. Execution or implementation of a decision cannot take away the decision itself so that there is no longer a decision. Having been executed or implemented, it gains the status of a decision that has been executed or implemented and not the status of a decision that once was but no longer is as is the status of a revoked decision.

While there remains a decision even though Mr Lesi has been deported from Australia, does the Tribunal continue to have jurisdiction to review it once it has been executed or implemented? As Mr Leerdam submitted, the Tribunal does not have power under s. 43 (or elsewhere) to declare the deportation order invalid. Regardless of power, the decision has already been determined to have been validly made by O'Loughlin J. It is also the case that the Tribunal does not have any power to order declaratory relief in this case. These restrictions apply equally across the broad range of the Tribunal's jurisdictions. It does not necessarily follow from the execution or implementation of a decision that the Tribunal cannot exercise its powers under s. 43 of the AAT Act. The Tribunal's powers are that:

"For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal." (s. 43(1))

If a decision could not be reviewed simply because it had been executed or implemented, then decisions such as those to cancel a payment under the Social Security Act 1991, for example, could not be reviewed once the payment had been cancelled. The same can be said of decisions made under the Great Barrier Reef Marine Park Act 1975. Decisions to carry out construction work in the Great Barrier Reef Marine Park in accordance with a decision which is reviewable by the Tribunal may be, and have been, reviewed even though work has been commenced. The Great Barrier Reef Marine Park Act does not modify the operation of s. 43 of the AAT Act. As previously enacted, the Social Security Act did modify it in s. 1294A but only in so far as it limited the powers and discretions referred to in s. 43(1) as if they excluded the Secretary's power under s. 1218A(2) allowing a person's qualification for a social security payment to continue in some circumstances. Neither modifies or modified s. 43 to exclude decisions that have already been implemented.

It seems to me that, unless the legislation conferring jurisdiction on the Tribunal modifies the operation of the AAT Act, the fact that a decision has been executed or implemented may only become a relevant issue upon considering an application for extension of time or for a stay or in considering whether an application should be dismissed on the basis that it is frivolous or vexatious. Only the question of whether the application is frivolous or vexatious is relevant in this case and I will limit my consideration to that.

In support of his submission that an order should be made under s. 42B of the AAT Act, Mr Leerdam relied on the judgement of Sundberg J in Director General Security v Sultan and Another (1998) 90 FCR 334. In that case, Mr Sultan had applied for a protection visa but it had been refused on two grounds. The first, which was reviewable by the Tribunal, was that he was not a person to whom Australia had protection obligations. The second, which was not reviewable by the Tribunal, was that he did not satisfy Public Interest Criterion 4002 in that he had been assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security. If Mr Sultan did not satisfy Public Interest Criterion 4002, the Minister was required by the Act to refuse to grant a visa and it was irrelevant whether the Tribunal concluded that Mr Sultan was, or was not, a person to whom Australia had protection obligations. In view of Sundberg J conclusion that, even though the Tribunal had jurisdiction to review the decision under s. 500 of the Act, it would be futile to embark upon that application while an adverse security assessment were in place. He directed the Tribunal to dismiss the application pursuant to s. 42B of the AAT Act.

I have already set out the provisions of s. 42B(1)(a) of the AAT Act. That provision was considered by the Tribunal in Re Williams and Australian Electoral Commission (1995) 38 ALD 366 (Mathews J, President, Beaumont and Hill JJ, Presidential Members) where the following general principles were stated:

"(30) The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636; (1964) 112 CLR 125. The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause: Per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324.
(31) The manifest untenability of a proceeding provides one ground for finding that the proceeding is a vexatious one. …" (page 372)

The Tribunal went on to consider the relevance of futility in the context of s. 42B. In that case, it had decided that, whatever the outcome of any review, that review could not have any effect upon the matter of concern to Mr Williams. The decision under review was a decision that a certain name be entered in the register kept under the Commonwealth Electoral Act 1918 as the registered officer of the Greens. At the time of the hearing, that person was no longer the registered officer of the Greens. Had Mr Williams been successful in having that name removed from the register, the effect would have been that the position of registered officer of the Greens was vacant for a period of time. As no election had been called during that period and the registered officer had not been called upon to perform his sole function under the Commonwealth Electoral Act, the vacancy was of no consequence at all. The Tribunal concluded that Mr Williams' application would be futile.

Despite its conclusion on that point, the Tribunal also accepted that Mr Williams genuinely believed that the contrary was the case and his application for review was not futile. The Tribunal then went on to distinguish between a genuine but mistakenly held mistake of fact and one of law:

"(37) The genuineness of the applicant's belief might well have been a relevant factor in his favour – and possibly a decisive one – had the subject of his mistake been a factual one rather than a matter of law. As von Doussa J commented in Hatchett, an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to 'a day in court'. In that event, it could operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence. But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant's legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. …" (page 374)

In adopting this approach, the Tribunal took the same path as that taken by Sundberg J in Director General Security v Sultan. In the Sultan case, review by the Tribunal would not lead to Mr Sultan's being able to obtain the visa he sought even if he were successful in every respect on that matter that was within the Tribunal's jurisdiction to review. Both Sundberg J and the Tribunal looked to the practical outcome of the review. I must do the same. The practical question that I must answer is whether there is any practical point (that is not a collateral and so an improper purpose) in reviewing the deportation decision even though it has been executed or implemented.

In this case, I accept that both Ms Cebreros and Mr Lesi are genuine in their belief that there is some practical merit in the Tribunal's reviewing the decision. The question I must consider is whether there is any merit. Mr Cole submitted that, if the decision were set aside and a decision substituted that a decision should not have been made to deport Mr Lesi, it may be arguable that he had not been deported while the subject of a valid deportation order. Special Return Criterion 5001 must be read, he continued, as requiring that an applicant for a visa "is not a person who left Australia while the subject of a [valid] deportation order". It was not valid because Mr Lesi was given notice that he did not have review rights and, as became clear from the later case of Singh v Minister for Immigration and Multicultural Affairs, he should not have been told that.

While it is not within the Tribunal's jurisdiction to determine whether or not a deportation order is valid, it is appropriate in the context of s. 42B of the AAT Act for it to consider whether Mr Cole's view of Special Return Criterion 5001 is arguable on its face. If Mr Cole is correct in his reading of Special Return Criterion 5001, that criterion would exclude Mr Lesi if the deportation order were valid at the time he was deported even if it were later set aside. The essential question to be asked then, is whether the advice to Mr Lesi that he had no right to have the decision reviewed affects the validity of the decision made by the Minister.

Resolution of that question requires a consideration of principles set out in the judgement of a majority of the High Court in Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ, Brennan CJ dissenting). In particular, it requires the distinction between mandatory and directory powers. Brennan CJ stated that distinction in his dissenting judgement in the following terms:

"… A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power (Osborne v The Commonwealth (1911) 12 CLR 321 at 336-337; Buchanan v The Commonwealth (1913) 16 CLR 315 at 329): the provision does not condition the existence of the power (See, eg, Clayton v Heffron (1960) 105 CLR 214 at 246-248; Simpson v Attorney-General (NZ) [1955] NZLR 271; Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; [1995] 1 All ER 367). Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory." (page 374)

Brennan CJ distinguished this type of provision from two other types of provision, which he compared in the following passage:

"A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power – that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied (See, eg, Spicer v Holt [1977] AC 987). A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity. A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power." (page 373)

This approach is consistent with that adopted by the majority when they said:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood ([1978] 1 NSWLR 20 at 23-24. See also Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 161-162, per Gibbs J.) in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' (Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146, per Gummow J.) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (Hutton v Beaumont [1977] 2 NSWLR 211 at 213, 226; Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93 at 102; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377). In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' Takser v Fullwood [1978] 1 NSWLR 20 at 24." (pages 390-391)

It seems to me that, quite apart from these principles, the particular issue is resolved by s. 27A(3) of the AAT Act. The effect of s. 27A(1) is that the Minister was required to take such steps as were reasonable to advise Mr Lesi that the decision was reviewable. The effect of s. 27A(3) is that his failure to do so does not affect the validity of the decision. It follows that I do not consider that the validity of the deportation order would be affected by the Minister's failure to give the appropriate notice.

It seems to me that Mr Cole's second argument may be arguable. That centres on s. 351 of the Act. Section 351(1) provides that:

"If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision."

The Tribunal to which s. 351 refers is the Migration Review Tribunal ("MRT"). The effect of Mr Cole's submission was that it would be relevant for the Minister to consider whether he should exercise his power under s. 351 if, in the future, the MRT were to affirm a decision refusing Mr Lesi a visa on the basis that he did not satisfy Special Return Criterion 5001. If the deportation decision had been set aside, that would be a relevant consideration in assessing whether it would be in the public interest to grant Mr Lesi a visa. The Minister would be able to undertake that consideration and exercise that power even if it were the case that Mr Lesi had been deported under a deportation order that was valid at the time he was deported.

Mr Leerdam argued that such a purpose was a collateral purpose to the review of a deportation decision. I do not see the application in those terms. An examination of the Act and Regulations and of the various visas available under them reveals that there is a complex web of often inter-dependent provisions. In some instances, the issue of a visa is dependent upon a person having been issued a different visa on an earlier occasion. In other instances, it is dependent upon his or her not having held a visa that was cancelled. In yet others, it is dependent upon a person meeting Special Return Criterion 5001. Given the inter-dependence of the provisions relating to visas, I do not consider that it can be said to be seeking review of a decision for a collateral purpose if, as here, setting aside that decision may have an impact upon a person's entitlement to a visa under the Act.

BACKGROUND

On the basis of the evidence, I have made a number of findings of fact that I will set out in the following paragraphs.

Mr Lesi, who is an Albanian National, was born in the village of Velipoje, which is near Shkoder in Albania on 2 September, 1968. Shkoder is on the
coast of Albania and the area is popular with tourists from Yugoslavia and Italy. His parents continue to live on the family farm together with his older brother, who is 35 years of age and unmarried. He also has two sisters. The elder is 32 years old and the younger 25 years old. Both are married with children and live in Italy. The family also owns a house on the coast and it is leased to tourists during the summer.

Mr Lesi completed 12 years of primary and secondary schooling before moving to Albania's capital, Teirna, to study dentistry for four years. His parents supported him while he studied. After completing his studies, he worked as a dentist in Velipoje between 1991 and 1994. He was employed by Albania's government.

Mr Lesi's father was a bureaucrat in the communist party and was head of Velipoje. In 1990, much of the family's land that had previously been confiscated was returned to the family. In 1993, there was political upheaval in Albania and life became difficult for Mr Lesi's father in view of his political associations. Much of the family property was sold at this time but Mr Lesi's father still owns quite a lot of land near the coast. The majority of the land is forest land but some has been developed into arable land for farming. From time to time, Mr Lesi's father transfers land to Mr Lesi and his siblings to sell. Mr Lesi sold a parcel of land in 1994 for $US50,000.00.

In 1994, Ms Dreeta Mema visited her relatives near Velipoje. She had been born in Albania and attended school in that country. Mr Lesi had known Ms Mema since he was 17 or 18 years of age. Ms Mema moved first to Yugoslavia as a refugee and then migrated to Australia with her husband as a refugee. She and her husband had two children but, when the marriage broke down, she returned to her family in Albania with her children for approximately four months. During that time, Mr Lesi and Ms Mema commenced a relationship and became engaged. On the expiration of her visa permitting her to remain in Albania, Mr Lesi took steps to migrate to Australia.

Mr Lesi arrived in Australia on 4 September, 1996. At that time, he spoke no English and, as the Albanian government for whom he had worked had been unable to pay his salary, had not worked for the previous two years. For those two years, he had worked on the family farm and had been supported by his family's income and assets, his father's pension and the sale of pieces of the family's land. When he arrived in Australia, he had $US15,000.00 and brought that in cash. He joined Ms Mema at premises she rented and commenced a four month English course. Ms Mema introduced Mr Lesi to members of the Albanian community in Adelaide and those people took him on outings and helped him to set himself up. He met a man called "Matheus" at this time and became friends with him. Matheus is also an Albanian National. Mr Lesi and Ms Mema married in October, 1996 but the relationship broke down in February, 1997 when they began fighting about Ms Mema's relationship with her former husband.

In or about February, 1997, Mr Lesi met Ms Cebreros. Ms Cebreros was born in the Philippines on 6 July, 1973 and has one surviving sister, Mrs Lucylyn Hidend, with whom she lives, one brother who lives in Australia, one brother in Saudi Arabia and three brothers in the Philippines. Her brother and sister who live in Australia are both Australian residents. Ms Cebreros is the youngest child in the family. Her father worked as a mechanic in Saudi Arabia during her childhood years and was able to send money back to the Philippines so that each of his children could attend private Catholic schools. Ms Cebreros attended school until she was 16 or 17 years of age. Her mother ran the family farm in the Philippines. She grew rice, corn and bananas. Family life was relatively comfortable but the children were brought up strictly. Marriage was regarded as a holy institution and separation and divorce were relatively unknown in the community.

Ms Cebreros was introduced to Mr Trevor Smith by her sister, Ms Hidend, when she travelled to the Philippines. Ms Cebreros and Mr Smith became engaged in the Philippines and Ms Cebreros came to Australia on a Fiancé visa and became a permanent resident. She and Mr Smith married on 13 June, 1990 but the marriage "slowly died away" when Mr Smith spent a lot of time promoting his products. They separated in approximately the middle of 1991.

Ms Cebreros found work in Australia some two months after she arrived. For over two years, she worked as a Foil Printer on a process line and then worked in a take-away shop in Holden Hill. She enjoyed that work and remained there from 1994 until 1997. In the meantime, she met and lived with Mr Malcolm Hunter for four years. That relationship ended as Mr Hunter did not want to commit himself to a long term relationship and did not want children. During that time, Ms Cebreros had purchased a house in her own name and she and Mr Hunter purchased the fish and chip shop in which she worked. Ms Cebreros managed all aspects of the business as well as working in it. In 1997, she and Mr Hunter sold it but she continued to work for the new proprietors. It was at this stage that Mr Lesi began to buy his fish and chips at the shop and kept returning.

In approximately March, 1997, Mr Lesi's father was shot in Albania and he returned to visit him. His family encouraged him to honour his marriage commitment and he returned to Australia. On that occasion, he returned with $US10,000.00. Ms Mema told him that she wanted him to move out of their premises. Mr Lesi went to live with Matheus.

By June or July, 1997, Mr Lesi's relationship with Ms Cebreros had become more intimate and he spent most of his time living with her at her home. His English was improving also. Mr Lesi did not make his relationship with Ms Cebreros known to the Albanian community in Adelaide or to his family in Albania as his taking up with another woman so soon after the break up of his marriage with Ms Mema would not be looked kindly upon. Furthermore, Ms Cebreros would not be looked upon kindly as she is Philippina and so regarded as Asian by Albanians. Asian people are not looked upon kindly by them. While he decided whether or not to make his relationship with Ms Cebreros known to the community, Mr Lesi maintained a home with Matheus first in St Peters and later at Fulham Gardens.

Ms Cebreros became pregnant in 1997 and Mr Lesi was pleased to hear the news. Their first child, a daughter named Belinda, was born on 13 May, 1998. Some months before the birth, Ms Cebreros and Mr Hunter sold the fish and chip shop. She continued to work at the shop after the sale but stopped at the end of 1997 when she was expecting her child.

The unit at Fulham Gardens was rented in the name of "Bernard Lucii". In order to obtain the unit, Mr Lesi told the landlady that he would be living in the unit with his wife as he thought that by doing so would enhance his chances of being granted a lease. Matheus would come and go to the unit.

Following events to which I will refer later in these reasons, Mr Lesi was charged on 13 July, 1998 with two counts of possessing heroin for sale and with possessing a controlled substance for sale. He pleaded guilty to both charges on 19 October, 1998 and was sentenced in the District Court on 5 November, 1998 to four years imprisonment in respect to both counts with a non-parole period of two years commencing on 19 October, 1998. On 28 January, 1999, he was convicted in the Adelaide Magistrates' Court with unlawful possession. He was sentenced to four months imprisonment with a non-parole period of two years cumulative with the sentences imposed on 5 November, 1998. (T documents, page 172)

During his imprisonment first at Yatala Prison and later at Cadell Training Camp and Northfield Cottages, Mr Lesi completed a course in drug and alcohol awareness and six sessions in victim awareness. He was presented his certificates to that effect on 14 July, 1999. On the same day, he was given a certificate that he had completed a 72 hour training programme including negotiation skills, problem solving, social skills, creative thinking, critical reasoning and management of emotions. Mr Lesi also completed a physical fitness programme and completed a 9 kilometre and a 20 kilometre run. In addition, he completed modules in Certificate II in Introductory Vocational Education and units taken from the Certificate II in Horticulture and the Certificate III in General Construction (Painting and Decorating). (Exhibit B)

While at Northfield Cottages, Mr Lesi was permitted to have home visits. During one of those visits, their second child was conceived. Their son, Edmario, was born on 6 May, 2000. Ms Cebreros visited Mr Lesi each day while he was in Yatala, every Saturday, Sunday and Public Holiday when he was at the Cadell Training Centre ("Cadell") and every weekend when he was at Mobalong Prison at Murray Bridge ("Mobalong"). In order to visit him at Mobalong, she would stay in a cabin with her two children so that she could see him on each day of the weekend.

THE EVIDENCE

Ms Cebreros' knowledge of the time of Mr Lesi being liable to deportation

Ms Cebreros said that she first became aware that her husband could be deported when he received a letter from the Department dated 13 May, 1999. She saw it in that month. She acknowledged that her son had been conceived after she had known that he could be deported. A lot of people had told her and her husband that he could not be deported for his first offence and he had a wife who was an Australian citizen. She thought positively about the future and, if the worst happened, she thought that all that mattered was that she and her family were together and healthy. Ms Cebreros was always trying to ignore the fact that her husband might be deported. She would not think of life in Albania. Deportation was not a matter she thought about when she had her second pregnancy. It was a planned pregnancy and she and Mr Lesi wanted a brother or sister for Belinda. If she had a son, it would be better if they were going to Albania. That is so as it is a "bigger deal" to have a boy in Albania. Even so, her pregnancy was not planned on the basis that she and her family were going to Albania as she had not planned to live in Albania.

Circumstances of the offences

Sentencing judge's remarks

Judge Lunn of the South Australian District Court set out the circumstances in which Mr Lesi committed two counts of possessing heroin for sale:

"On 4 March 1998, the car which you were driving along South Road was stopped by police. You then threw out of the car six water balloons, each of which contained heroin with a total weight of 1.01 grams of pure heroin. Your possession of that heroin constituted count one.
The police then attended a unit at Fulham Gardens where you resided. There they found eight packages containing heroin, and eight more water balloons containing heroin, which amounted to a total weight of pure heroin of 17.13 grams. Your possession of this heroin constitutes the second count.
You say that about two weeks before 4 March you had become a courier for Dragon Matheus and had delivered heroin which he supplied and packaged to various persons on his behalf for which you were paid $70 a day and given the use of a car. You knew that the heroin which so came into your possession was intended for sale.
You deny packaging the heroin or being otherwise involved in its procurement or sale. The prosecution did not put this in issue and I sentence you on the basis that your involvement was no greater than you have admitted." (T documents, pages 139-140)

Judge Lunn found that Mr Lesi had in his possession $1,050.00 in cash when he was arrested and a further $45,010.00 in a safety deposit box. He did not find that the sum of $1,050.00 and $15,000.00 of the larger sum were related to Mr Lesi's drug activities. Mr Lesi had claimed that the remaining sum of $30,010.00 belonged to Matheus.

His Honour found that Mr Lesi had been unable to find employment in Australia other than spasmodic, casual and menial employment. He was not a heroin user and had pleaded guilty on his first arraignment. Furthermore, he accepted that Mr Lesi was contrite for his offences and sentenced him as follows:

" There is no doubt that a substantial term of imprisonment must be imposed. The only real issue is what is to be the length of the non-parole period. I accept that imprisonment for you in Australia will be somewhat harsh because of your lack of family and community support. You would appear to be a good candidate for rehabilitation, but the general deterrent element of the sentence dictates that a significant non-parole period must still be imposed.
There will be a single sentence under s.18a of the Sentencing Act. The sentence of the court is that you be imprisoned for four years with a non-parole period fixed at two years, both of which are backdated to when you were taken into custody on 19 October 1998. But for your plea of guilty, the head sentence would have been five years imprisonment.
In assessing the amount of the discount, I have regard to the fact that there was a strong prosecution case against you.
On the oral applications for forfeiture under the Criminal Assets Confiscation Act, I make orders of the forfeiture of the heroin and the mobile phone, which orders were not opposed by your counsel. …" (T documents, pages 141-142)

Judge Lunn declined to consider further whether Mr Lesi should forfeit money found in the safety deposit box and the car as notice had not been given to Matheus.

Sentencing magistrate's remarks

Mr Lesi pleaded guilty to unlawful possession of the sum of $30,000. In sentencing him Mr Boxall took into account the version of facts agreed between Mr Lesi and the prosecution and the sentencing remarks of Judge Lunn. He summarised the facts as:

"Essentially, the defendant was sentenced for dealing in heroin over a period of 3 weeks. He succumbed to temptation when he started to run out of money. He was induced into selling heroin by a friend of his from Albania, called Dragon Matheus. The judge accepted, and I accept for present purposes, that was all the defendant was involved in. He received $70 a day and quite soon after he started to engage in that criminal activity he was arrested.
The $30,000 was placed in a safety deposit box by the defendant at the request of Matheus. The placing of that money pre-dated the defendant's knowledge, or understanding, that Matheus was involved in illegal drug dealing. He looked after it at the request of Matheus and he initially believed Matheus was earning good money at that time. However, it is agreed that he did eventually form some suspicious (sic) about that the money which was a belief or knowledge that the money was most probably from illegal drug dealings after he became aware of Matheus's role in the illegal activity." (T documents, page 133)

Mr Boxall sentenced Mr Lesi on the basis that the money was not directly obtained by him as part of his own drug dealing activity. Rather, he sentenced him on the basis that Mr Lesi was the custodian of money for someone else who was involved in drug dealing activities and he did so even though he had discovered that drug dealings were the likely source of that money. He regarded Mr Lesi as a "a good candidate for rehabilitation" and "… suspect[ed] that at the end of his gaol term he will take his place in the community as a law abiding citizen, having learned his lesson." (T documents, page 134)

Mr Lesi

In his oral evidence, Mr Lesi said that he met Matheus, who is also from Albania, when he went to Adelaide. Matheus was the only member of the Albanian community in Adelaide to accept Ms Cebreros and his relationship with her. Matheus found him a flat. At that time he was spending a lot of time with Ms Cebreros, who was pregnant. He could not say that he was living with her, though. Matheus was making a lot of money, he said, and told Mr Lesi that he could make quick money for him too. Matheus paid him $70.00 for each delivery and said that he would give him a car at the end of six months if he did a job for him. That arrangement was made at about the end of January, 1998. The job involved his dropping off packages. He worked for Matheus for 1½ months and delivered the packages to Steve who has since died of a drug overdose. Mr Lesi did not know whether Steve gave it to others but Steve told him that he used it himself. Steve would give him $220. When Mr Lesi gave that money to Matheus, Matheus would give him $70 in payment each time. He made deliveries for 45 days.

Mr Lesi said that what he did was horrible and that he cannot believe that he was so stupid. At times, he tries to hide it and tries not to tell people what put him in the situation he is in today. Ms Cebreros knew the "good me". He said that he pleaded guilty when he was charged even though he was told that he could have pleaded not guilty. He paid the price as he did what he had done and deserved to pay the price. He "stuff up everything for himself and everyone", he said. He deserved more; he deserved to go to hell, he said. Aileen, though, has paid a big price and she does not deserve to pay it, he said. Only he should have to pay the price, he said. Mr Lesi said that he gave her a choice whether to go or stay and she stayed with him. She continued to stay with him after he was told of his deportation when he had been in gaol for a year. Mr Lesi said that he did not know of the possibility of his deportation before that.

Mr Lesi said that he knew that what he had done had been bad but not that it was "bad, bad, bad". When he went to gaol, he had to spend time with people who were on drugs. Mr Lesi realised that he had helped people to acquire their habits. In cross-examination, Mr Lesi said that he had known of heroin when he was training to be a dentist. He had not known, however, that it was "such a bad addictive thing". He did not know that until he went to gaol. He did not see any bad effect on Steve's health and Steve had spoken of stopping in September when he would go overseas and get married. Mr Lesi said that he had known that what he was doing was illegal if he was being paid to drop off packages. He agreed with Mr Leerdam that he had written in a letter dated 17 May, 1999 that he had been led to believe that he was not committing a bad offence. He said that he had been told that by Matheus, who had been in Australia for ten years. At that time, Mr Lesi said that he could not speak English. Matheus was the only person who was talking to him when he was with Aileen. Matheus told him that "everyone does it". It is illegal but not bad and he would not go to gaol. If he did not do it, then somebody else would.

Ms Cebreros

Ms Cebreros said that, although Mr Lesi had been very pleased when she fell pregnant, he immediately became very worried and anxious about securing his family's financial future. At the time, Ms Cebreros thought that Mr Lesi was receiving payments from Centrelink as he was not working. Culturally, she said, she thought that it was very important for Mr Lesi to be able to provide for Ms Cebreros and their child. Ms Cebreros was not able to provide for them as she would have to stop working when her baby was born. As her pregnancy progressed, Ms Cebreros felt that Mr Lesi was becoming more and more frustrated by his inability to obtain work. His English was not very good at the time although it was improving. He was not able to take over her job in the fish and chip shop as the owners preferred a lady and because she had known all of the customers. Ms Cebreros said that he was receiving money from Centrelink and had saved some money. He never told her about money he had in a safety deposit box.

Ms Cebreros said that she was completely shocked when the police told her that Mr Lesi had been arrested for trading in heroin. That was the first time that she had known anything about any criminal activity. She told him that she did not know where he lived but that he came to her home each night. Although the police searched her house thoroughly, they did not find any evidence of drugs or drug trafficking. Ms Cebreros believes that Mr Lesi decided to act as a courier for the drugs for another Albanian. He was to be paid $80.00 or so for the job. She understood that Mr Lesi had been told that he would not get into trouble and that if the police caught him he should just throw the heroin away. She realised that it sounds naïve but she believes that Mr Lesi did not realise how serious an offence it was to deliver heroin.

Mr Lesi's behaviour since committing offences

There were several character references in the documents but I will refer only to those where the author was called to give evidence or, in the case of Mr Ben Limon, the reference relates to Mr Lesi's influence on Mr Limon's life.

Major Brian Sampson and Mr Ben Limon

Major Brian Sampson is the Salvation Army's Chaplain to the Prisons of South Australia. He met Mr Lesi when Mr Lesi graduated from a course known as "Operation Challenge" at the Cadell Training Centre. In a letter dated 1 August, 2000, Major Sampson wrote of Mr Lesi:

"During his time in prison, Bernard made the acquaintance of a young man named Ben Limon who was struggling with a drug habit and low self esteem. The lad was in very poor physical condition, and needed some encouragement to better himself.
Bernard took Ben 'under his wing' and got him started on gym work, teaching him to take pride in himself, and when I met Ben at that time he was about 65-70 Kg, and starting to realise just what he could become. Now, twelve months later, Ben has been on home detention for several months, has become a father, and has progressed from being a sniveling kid who wouldn't get his hands dirty to being a responsible father and husband who takes pride in himself, his wife and child, his home, and is still following the encouragement given by Bernard. Ben, now weighing in at 100Kg, is happy to get his hands dirty as a builder's labourer, and has excellent prospects for the future.
I realise the gravity of Bernard's office, but I also see his value to our community as a man who has much to offer in assisting the rehabilitation of others. He would certainly be of value to The Salvation Army in any of our community based programmes.
Bernard has two children to an Australian girl Aileen, who would like me to officiate at their wedding when this matter is concluded. Should he be deported, she will travel to Albania with him, since she does not want her children to grow up without their father. Unfortunately, she and the children will be 'outcasts' and severely isolated in Albania.
On their behalf, and in light of Bernard's excellent work with Ben Limon, I would appeal for an exception to be made in his case, and for Bernard to be given a second chance, which I am certain will not be wasted or trivialised, to be a contributing resident in Australia." (T documents, page 232)

In his oral evidence, Major Sampson said that he had had involvement in the drug scene in his younger days. When he saw people in prison and they had taken uppers or downers or had smoked marijuana, he would send them back and tell them to come back. He would talk to them then. Mr Limon was not one of the people to whom he said that. In his work, he travelled to all of the prisons in South Australia. Mr Limon was the only person whom he saw go into prison with a drug habit involving hard drugs and leave prison with his only drug being adrenalin from weight lifting. He has seen failures in that time and has seen people who have committed suicide or died from taking drugs.

Mr Limon's mother, Ms Kerry Limon, confirmed Major Sampson's views of her son when he was first incarcerated and of the positive influence that Mr Lesi had on his life. She wrote in a letter dated July, 2000:

"When my son was incarcerated in South Australia in January 1999 he was sent initially to Yatala Prison. He was frightened, immature young man, miles from home. Benard befriended my son and has continued to be a very positive influence on him. My gratitude is strong. …" (T documents, page 234)

In her statement, Ms Limon again spoke of the influence of Mr Lesi upon her son's life:

"7. Benard continued to play a positive role in my son's life. He provided him with important guidance and advice. He encouraged him to take care of his body and to have respect for himself. He showed my son an excellent example of family life and showed him a good example of how man should behave towards family members.
8.When Ben was imprisoned in January 1999 his partner Catherine was pregnant. Their child Nicholas was born on the 17th September 1999 and Catherine moved to Adelaide in December 1999. Catherine visited Ben regularly and their relationship strengthened. They were supported by both Benard and Aileen in their relationship." (Exhibit A)

Mr Limon gave evidence both in oral and written form. He said that he had become involved in criminal activity when he was in his late teens and was seduced by the money that he could make by being a courier for drugs. In addition to trafficking, he also used speed but had not used heroin. He was in custody from January, 1999 until the middle of 2000. In his statement, Mr Limon said that he believed that he had been at a crossroad in his life when he was sentenced to imprisonment. He could have become involved with the younger inmates within the prison system and, if he had done that, Mr Limon believed that he would have become more deeply entrenched in criminal behaviour by developing other networks and contacts in the criminal world.

Mr Limon said that he first met Mr Lesi in the yard at Yatala. Mr Lesi took him under his wing and acted as a father figure to him. Mr Limon's own father had died when Mr Limon was eight months of age. He said that Mr Lesi was quite tough on him at times and pulled him into line but Mr Limon felt respect for him. At times, Mr Limon would smoke marijuana in gaol but, if he found out, Mr Lesi was very hard on him and told that he was an idiot setting out to destroy his life. He encouraged Mr Limon to stay away from drugs and from smoking. Mr Lesi encouraged him to train and lift weights in the gym. As a result, Mr Limon began to feel better about himself.

Since his release, Mr Limon has returned to his home town in New South Wales and has been employed since then as a storeman. He and his partner are expecting their second child in early 2002 having had their first while Mr Limon was in prison. Mr Limon said that Mr Lesi had provided him with an excellent role model of what a father should be. He said of Mr Lesi's interest in his family that it was "inspiring". (Exhibit A, paragraph 11)

Marden Senior College

Marden Senior College is an adult re-entry college. The Assistant Principal, Kim Hebenstreit, wrote a reference for Mr Lesi dated 31 July, 2000 (T documents, page 233). At that time, Mr Lesi had been a student at the college for two years. Kim Hebenstriet wrote that Mr Lesi had an excellent attendance record and proved himself to be an industrious student who fully participated in all lessons, contributed to class discussions and sought to pursue knowledge as well as supporting other students from non-English speaking backgrounds.

Mr Lesi's relationship with Ms Cebreros and his children and the effect of his absence

Mr Lesi

Were the children to live in Albania, Mr Lesi said, he would be able to afford to educate them but it would be hard for Belinda as there is not a lot for girls to do. A girl cannot be sent to college. Only 5% of girls go to school but 95% do not. All of the schools in Albania are run by the government. A girl is like a housekeeper. Women do not drive. "That is how it is", he said, and it "won't change". Everyone adores a boy but a girl is left out and everyone ignores her. Mr Lesi agreed that he was in a financial position to enable him to break the traditional way in which daughters are reared but that it "is up to the village". In 100 years, no girl had gone to university. It has never happened before. On top of that, Aileen and Belinda look different and it is not safe for them. In the country, everyone looked at Aileen. The police treated her badly as they had never before seen an "Asian woman". They asked her what she was doing there. You "can't change it", he said, and that is "how it is".

Ms Cebreros

Ms Cebreros said that Mr Lesi was delighted when their daughter was born and immediately fell in love with her. This was despite his having a cultural background which is focused on men and in which the role of women is to serve men. Ms Cebreros said that she visited Mr Lesi every day when he was at Yatala, every Saturday and Sunday and every public holiday when he was at Cadell and every weekend when he was at Mobalong. She would take Belinda with her and Mr Lesi used to show her off to the inmates and the guards.

Ms Cebreros said that she receives financial support from Centrelink and has received some help from her sister. When she returned to Australia from Albania, her husband's parents gave her some money. She has not received any assistance from her family in the Philippines and has not told them of her situation. Her family believes that Mr Lesi is with her in Australia.

Ms Cebreros said that Mr Lesi talks to his children every Friday, Saturday and Sunday as it is cheaper to do so at the weekend. His daughter keeps asking him when he is coming over. Mr Lesi does not write as he cannot write properly in English. His children get along with him very well, Ms Cebreros said, and his daughter prefers to be with him rather than with her.

Ms Limon

Ms Limon wrote in her letter of 1 August, 2000 of the strong relationship between Ms Cebreros and Mr Lesi and between Mr Lesi and his daughter. She had seen them together when she visited her own son at Cadell and Yatala. Each time that she visited, she saw Ms Cebreros, Mr Lesi and Belinda. She said that it was quite apparent to her that Mr Lesi had a strong, loving bond with both his wife and his daughter and that they all had a determination to pursue their family life despite the despair of a prison environment. (Exhibit A)

Ms Hidend

Ms Hidend has been married and resident in Australia for approximately 13 years. She met Mr Lesi at about the same time as her sister met him. Ms Hidend likes Mr Lesi and has always found him to be a quiet and respectful man. A relationship developed between him and her sister quite quickly and they seemed to be very happy together. Both her sister and Mr Lesi were delighted with her pregnancy. Her sister was very upset when Mr Lesi was arrested. She is completely against all drugs and does not even smoke or drink. While she was horrified at what he had done, Ms Hidend said that her sister was committed to the relationship and determined to support Mr Lesi.

Life in Albania

The Bureau of Democracy, Human Rights and Labor in the United States Department of State prepared a Country Report on Human Rights Practices in relation to Albania. It is dated 25 February, 2000 and relates to 1999. It is a comprehensive report referring to economic, political, social, judicial order. In relation to women, the report noted:

"Violence against women and spousal abuse still occur in this traditionally male-dominated society. Cultural acceptance and lax police response result in most abuse going unreported. No government-sponsored program protects the rights of women. An NGO maintains a shelter in Tirana for abused women, but the facility has the capacity to house only a few victims at a time. The same NGO also operates a hot line that women and girls can call for advice and counseling. The line received thousands of calls during the year. The UNHCR reported some cases of rape and sexual assault of Kosovar Albanian women in refugee camps. The concepts of marital rape and sexual harassment are not well established, and most such acts would not be considered crimes.
Many men, especially those from the northeastern part of the country, still follow the traditional code known as the 'kanun,' in which women are considered chattel and may be treated as such. Also under the kanun, it is acceptable to kidnap young women for brides; this practice, too, continues in some areas of the northeast.
Trafficking in women for the purpose of prostitution is a significant problem. …
Women are not excluded, by law or in practice, from any occupation; however, they are not well-represented at the highest levels of their fields. The Labor Code mandates equal pay for equal work, but no data are available on how well this principle is implemented in practice. Women enjoy equal access to higher education, but they are not accorded full and equal opportunity in their careers, and it is common for well-educated women to be underemployed or to work outside the field of their training. An increasing number of women are beginning to venture out on their own, opening shops and small businesses. Many are migrating along with men to Greece and Italy to seek employment." (Exhibit C, pages 8-9)

Mr Lesi

Mr Lesi said that Ms Cebreros had the choice whether she stayed in Australia or accompanied him to Albania. She decided to go with him to his country, which is "one hundred percent different from Australia". His parents, brother and sister loved her and the children very much.

Ms Cebreros

Ms Cebreros said that she felt very welcome in the home of Mr Lesi's family in Albania and felt accepted by them. She found that the majority of people in Albania were quite racist and did not accept her because she was a Philippina or an "Asian" person. She coped with life in Albania by rarely leaving the house. In her oral evidence, Ms Cebreros said that she did nothing apart from cook and clean when she was in Albania. It was only when she stayed at home under the protection of her husband, his brothers and her father in law that she was safe. Of the role of women in Albanian society, she said that:

"Their purpose in life is to serve men. Women are expected to be good and quiet. The highest praise a woman can receive is that she is 'good'. Good means that she is agreeable and serves the men without complaint. The men are hot tempered and feuding and violence is very common." (Exhibit A, paragraph 86)

Ms Cebreros said that her daughter played with other children but they could not play outside because of the dust. Belinda learned a little of the Albanian language but she has since forgotten it. Ms Cebreros visited the school that was housed in one room. There was no proper table in the room and there were no proper seats for the children. Ms Cebreros felt that there was no discipline in the room. Electricity was not connected to the room and there was no door on the room and no heating in the winter. Children did not attend the school each day as different grades were taught on different days.

There is a doctor in the village located near to the farm where her husband's children live. Ms Cebreros was not happy with his professional rooms where the examination table was covered with food and there were flies. As her son was ill at the time, she felt that she had no choice but to let the doctor examine her son and give him an injection but she was not happy about it.

Ms Hidend

Ms Hidend accompanied her sister and her family to Albania. She spent three weeks there on that occasion and another ten days in March, 2001. Life was very difficult, she said. There was no light and the children cried all of the time. Everywhere was mud and the children did not have anywhere to play. There were no parks and gardens and only mountain and rocks. Travel was very difficult as the roads were either dust or mud. Ms Hidend helped to look after the children. She had nothing else to do as she could not understand the language.

Ms Hidend said that Belinda is happy with her father. Back in Australia, she has started to ask questions about where her father is, why they do not live in their own house and why they live in their aunt's house. She is always asking questions.

Ms Hidend said that the school was a one teacher school with about 40 pupils. The children just sat at a big table. There was nowhere for the children to play. Ms Hidend did not ask about what courses were being taught.

The future

Ms Cebreros

Ms Cebreros said that where she and the children live is not up to her alone as she needs to consult with her husband. The happiness of the children is important. They need to be accepted and to live in a stable environment where they are loved. She will follow what her husband says as they are his children and he loves them dearly.

Ms Cebreros said that there would not be any opportunity for her to work. That arises from the fact that she is a woman and is exacerbated by the fact that she is Asian.

Ms Cebreros said that she had returned to the Philippines in 1994 for six weeks and for two weeks in August, 2001. Her purpose in returning on the second occasion was to show her children to her parents and family. She did not enquire about the possibility of her husband living in the Philippines and would not herself return there to live. Ms Cebreros said that she preferred Australia and Australia is a better place in which to educate her children.

Ms Tilly

Ms Helen Tilly interviewed Ms Cebreros on 15 January, 2001 and found that she was suffering from moderate to severe depression, anxiety and stress when she completed the Depression, Anxiety and Stress Scale. In her oral evidence, Ms Tilly said that Ms Cebreros was suffering from a depressive disorder. When tested on the Impact of Scale Revised while focusing on Mr Lesi's deportation, Ms Cebreros reported that she felt irritable and angry and was always aware of the problem. She feels numb at times and wanted a decision made as quickly as possible for the sake of her children, husband and herself. Ms Cebreros felt the shame of her husband's being imprisoned for drug trafficking and being deported. She withdraws from friends in Australia and says as little as possible to her family in the Philippines. This affects her feeling of well-being and sense of belonging. Ms Tilly noted that Ms Cebreros loves her husband and wants to live with him. Ms Cebreros regards him as a very good father and he and his daughter have a very special relationship. With regard to the country in which she and the children would live, Ms Tilly reported:

"'If he loves the children so much he would realize the best place to bring them up is in Australia.' This may well mean that if Benard can not return to Australia, the children will rarely see him if they stay in Australia. There is some work for Benard in Albania working for his family." (Exhibit A)

Ms Tilly was asked whether it would be in the interests of Ms Cebreros' health were she to live in Albania:

"As she is suffering now and needs treatment, she may not improve health wise knowing that she and her daughter in particular, will mostly be housebound and servile to men for the rest of their lives. This cannot be good for a woman who has already shown she can work productively in her own business here in Australia, save for and buy a house before marriage. Bound now to the house is contributing to her psychological problems and she would in all probability be even more distressed living in Albania. This would affect her marriage and children and herself." (Exhibit A)

Ms Tilly considered that Ms Cebreros is committed to her marriage to (or relationship with) Mr Lesi but did not know whether she would want to put her children through life in Albania forever. Ms Cebreros says that she has no option but is fearful of the consequences. It is Ms Tilly's view that keeping Mr Lesi in Albania would affect his daughter psychologically. She is already so close to her father and would feel abandoned by him. In discussions with Ms Tilly, Ms Cebreros had indicated that she and her daughter would stay at home were they to live in Albania.
In her oral evidence, Ms Tilly said that, because of her love for him, Ms Cebreros had at first appeared to want to be with Mr Lesi whether it be in Albania or Australia. Further questioning revealed that she was confused as she did not know what the outcome would be. One way or the other, she wanted the whole matter to be over. As Mr Lesi knew of the difficulties in Albania and as he loved them, he would realise that Australia would be a better place to raise the children.

THE LEGISLATIVE AND POLICY FRAMEWORK

Section 201 of the Act does not impose any limitation upon the Minister's discretion to exercise, or not to exercise, his power under s. 200. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it.

On 21 December, 1998 the Minister issued directions pursuant to s. 499(1). They are known as General Direction – Criminal Deportation - No. 9 ("the Direction"). The Direction states that the Government is very mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a person. A decision-maker is directed to have regard to two primary considerations and to a number of other considerations. While having due regard to the importance placed by the Government on the two primary considerations, a decision-maker should also adopt a balancing process which takes into account all other relevant considerations.

The two primary considerations identified by the Minister are the expectations of the Australian community and, in all cases involving a parental relationship between a person and a child or children, the best interests of the child or children (clause 6). Other considerations are also acknowledged by the Direction to be relevant but they are to be given less weight than the primary considerations (clause 21). It identifies two of the most common to be:

"(a) the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
(b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation." (clause 7)

The Direction goes on to expand upon what is meant by "community expectations". Two aspects of community expectation are identified:

"(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia." (clause 8)

The Direction then deals separately with each aspect. In relation to the protection of the Australian community, it further divides that into three aspects, which it identifies 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; and
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons." (clause 10)

Under the heading "The seriousness and nature of the offence", the Direction states:

"11.   It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.
.        Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.
.        The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
.        Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.
(b)organised criminal activity resulting in a conviction in Australia;
(c)sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence;
(d)armed robbery (including robbery involving the use of imitation weapons);
(e)murder, manslaughter, assault or any other form of violence against persons;
(f)terrorist activity;
(g)kidnapping;
(h)blackmail;
(i)extortion;
(j)serious theft (including 'white collar' crimes);
.        Such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government.
(k)crimes against children;
.        Because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children.
(l)any other crimes involving violence or threat of violence;
.        Such crimes are of special concern to the welfare and safety of the Australian community.
(m)ancillary offences in respect to any of the above offences, including:
.        convictions for attempting to commit any of the above offences;
.        convictions for conspiracy to commit any of the above offences;
.        convictions for being an accessory before or after the fact in any of the above offences.

Decision makers should have due regard to the Government's view in this respect."

A more general statement is found in clause 12 of the Direction:

"It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision makers should have due regard to the Government's view in this respect."

The risk of recidivism is the second aspect identified in the Direction as relevant to an assessment of the level of risk to the community and the need for its protection. It states that:

"13. It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government's view in this respect. In particular the following factors will be relevant to the assessment:
(a)the person commits a further offence after having warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;

(b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;

(c)the extension of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make."

The third aspect identified in the Direction as relevant to an assessment of the level of risk to the community and the need for its protection is the likelihood that others will be prevented from, or inhibited in, committing like offences. Clause 14 of the Direction is concerned with this aspect and it states:

" It is the Government's view that this factor may be relevant to protecting the Australian community in various ways:
(a)the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and

(b) the deportation of a potential deportee who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from committing new offences. For example, the potential deportee may be a ringleader whose deportation may reduce the likelihood that his or her associates will commit other offences. …"

With regard to crimes abhorrent to the community, the Direction states:

"15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. …"

The second primary aspect identified in the Direction relates to the best interests of the child. It is the Government's view that the decision maker must determine the best interests of any child aged less than 18 years who is in a parent-child relationship or other close relationship with the deportee. The Direction states:
"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 will be served if the child remains with its parents. Countervailing 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 from the potential deportee's unlawful conduct.
Decision makers should have due regard to the Government's view in this respect."

Turning to considerations other than primary considerations, the Direction expands upon the two most common it had identified earlier in paragraph 7. With regard to the degree of hardship which a person might suffer if deported, clause 22 of the Direction states:

"It is the Government's view that factors to be considered here include:
(a)whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported.
(c)the degree and extent of the potential deportee's ties with the likely country of return;
(d)the strength of other family, social or business ties in Australia;
(e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.

…"

With regard to the degree of hardship to Australian citizens or permanent residents, including the person's family, the Direction states:

"23. The best interests of any relevant children are a primary consideration and are not considered under this heading.
24.It is the Government's view that factors to be considered here include:
(a)the effect deportation would have on any marital or de facto partner, including whether he or she would leave Australia with the deportee and whether this would impose undue hardship on the non-deportee partner;
(b)the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them;
(c)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(d)the views (if any) of the victim or victims of the crimes committed by the potential deportee.

…"

CONSIDERATION

I will first consider the seriousness of the convictions upon which the order for deportation was made. The offences were two of possessing heroin for sale and possessing a controlled substance for sale and one of unlawful possession. There can be no question that the offences were serious. It is implicit in the circumstances of the offences. Although I accept that Mr Lesi did not know that what he was doing was a "bad, bad, bad" thing warranting his being sent to gaol and that there were reasons for his becoming involved that related to his wanting to provide for his family, they were in fact serious offences. It is consistent with Judge Lunn's sentencing remarks and with Mr Lesi's evidence, that he was not engaged in the procurement of heroin or with the development of a network for the sale of it. I find that he was simply a courier who delivered the heroin to one other person on a regular basis. His involvement was as a link in the chain of distribution but he did not forge the chain. For all that, the sale and distribution of heroin is not only unlawful but heroin addiction may have grave social and health consequences for the person addicted, his or her family and the community in general. Those who are links in the chain providing the means of addiction are punished with what Judge Lunn described as a "substantial term of imprisonment" and that was even though he recognised Mr Lesi's more minor role, that he did not understand the seriousness of his actions and that he appeared to be a good candidate for rehabilitation. The possession of illicit drugs for sale is an offence to which specific reference is made in paragraph 11(a) of the Direction.

That brings me to the risk of recidivism i.e. the risk that Mr Lesi will re-offend if permitted to return to Australia. On the evidence I have been given, I find that Mr Lesi's convictions all arise out of the one set of circumstances. There is no history of his having committed any offences prior to that set of circumstances or of his having done so since. In find that the set of circumstances arises from his wish to support his family. Although he qualified and worked as a dentist in Albania, I find that he was extremely hampered in his efforts to find work by his lack of English. His lack of fluency isolated him from the general Australian community and he was isolated from the Albanian community in Adelaide to some extent when his marriage to Ms Mema came to an end. By 1997, his English was improving but he was then further isolated from the Albanian community as he was concerned that Ms Cebreros would not be accepted by that community. I also find that, when Ms Cebreros became pregnant, he became most concerned about the manner in which he would support her. Ms Cebreros had sold her interest in the fish and chip shop and so that work was not available to him. He was unable to find work as a dentist and his English still inhibited his attempts to find work.

I find that this set of circumstances drew him to Matheus and to accept the work Matheus offered. It could be thought that he was naïve, or even wilfully blind, to the serious breach of the law Matheus asked him, and he agreed, to commit. From another point of view, it could be thought that his isolation from the general community brought about by his lack of English contributed to his lack of understanding of the ways and expectations of the general community. I find on the basis of material that has been put before the Tribunal, but which I have not summarised, that community expectations are very different between Albania and Australia. That appears from that material to be the case in relation to heroin. An article dated 6 January, 1999 by the International Crisis Group speaks of the cultivation of marijuana and the increase in Albania of both drug use and drug trafficking. It was stated in the article that:

"… A growing number of Albanians are becoming involved in the narcotics trade as farmers, traders, couriers and motorboat owners. There are sizeable profits to be made in a region otherwise devoid of industry, and due to the lack of any other source of income, the prosperity that the drugs trade brings is regarded locally a stabilising factor." (Exhibit C)

On the basis of the evidence of Mr Lesi, Major Sampson, Mr Limon and Mrs Limon, I find that Mr Lesi no longer thinks of his behaviour as not a very bad thing. That understanding has not only come because of the deprivation of his freedom and his learning that imprisonment was a consequence of his actions but also because of his experiences during that deprivation. In his case, I am satisfied that his term of imprisonment served a rehabilitative purpose as well as punitive and deterrent purposes. He used his term to learn about the effects of drugs and to understand them. Using that understanding, he was able to help Mr Limon to become a valuable member of society. It could be thought that Mr Lesi had done that purely for the purpose of shortening his sentence or for avoiding deportation. Major Sampson is a person who has seen both sides of drug use and, with his experience as prison chaplain, it might be thought that he would be cynical of such behaviour. On the contrary, though, he was most impressed by the change that Mr Lesi was able to effect in Mr Limon and gave no indication that Mr Lesi's efforts were anything other than genuine. That Mr Lesi's efforts were genuine is supported also by the evidence of Mrs Limon and Ms Cebreros in relation to his attentiveness to his partner and his children. He has always shown that attentiveness to Ms Cebreros but it could have waned over the period of his imprisonment. Instead, I am satisfied that it remained constant and has remained constant since. That adds weight to my finding that he is also constant in his attitudes to others and in his behaviour.

Mr Lesi used his time in gaol to improve his English and by the time of the hearing, he appeared quite fluent. This will have the effect of reducing his sense of isolation if he is permitted to return to Australia. That will assist him to gain a better understanding of the Australian community but I am satisfied that he already understands that any sort of involvement in illicit drugs is unacceptable conduct. I am also satisfied that he has no intention of having any further involvement with illicit drugs or with any illegal behaviour. The likelihood of his doing so are minimal. I base that finding on a number of matters. First, his convictions have arisen out of the one set of circumstances over a very short period of time. Second, the reasons that I have found led to his committing the offences have been mitigated by his becoming more fluent in the English language and so enabling him to become part of the Australian community. Third, is his shame at having been involved in such activity now that he has seen the effects of illicit drugs on others and his shame at having visited hardship and despair on his family. He does not wish to be further shamed by any such behaviour in the future. There remains a question as to the work that he would be able to do if he were permitted to return to Australia. His increased fluency in English can reasonably be expected to assist him to find work. Even if it does not, I am satisfied that his bond with Ms Cebreros is very strong and they will be able to work out a practical and legal way to support their family.

I am not satisfied that deportation will deter others from committing similar offences. Given the myriad of reasons why people become involved with illicit drugs, the deportation of an individual, if it were to become known, is unlikely to have any impact at all on whether people become involved or desist from their involvement with illicit drugs. If it were to have an effect, it is more likely to have the effect by sending a message that, if a person errs on one occasion or in one set of circumstances, there is no point in reform for, as the old saying goes, a person "may as well be hanged for a sheep as a lamb".

In some circumstances, it may be that trafficking in heroin would be a crime that is so abhorrent that the Australian community would expect a person convicted of that offence to be deported. The circumstances must determine the expectation and I do not accept that Mr Lesi's circumstances would engender that reaction in the community as a whole. There would, of course, be members of the community who would hold that view but the Direction requires me to consider the way in which Mr Lesi's crimes would be viewed by the community as a whole and to determine its expectation In the absence of being able to take a sounding from every member of the community, that is an almost impossible task. It is one that must be ascertained by making oneself aware of the range of views that are held in the community and trying to come to a conclusion of "the" expectation of the community. It seems to me that the Australian community when taken as a whole would regard his crimes as serious and completely unacceptable. At the same time it would see the perpetrator of them in a different light. It would see them as having been committed in the one set of circumstances by a person who is deeply ashamed of his behaviour, who has not committed further offences, who has helped others and who has worked hard to improve himself while in gaol and to gain an understanding of Australia. In all of the circumstances, it does not seem to me that the Australian community would expect that he be deported.

That brings me to Mr Lesi's relationships. His relationship with Ms Cebreros has endured since 1997 and has survived his being incarcerated and deported. I find that Ms Cebreros is very committed to him and he to her. Their daughter was born before he was gaoled and before he was given any indication that he could be deported. Their son was born almost a year after he was given that notice. I accept that Ms Cebreros and Mr Lesi planned to have a second child. They did so in order to complete their family. They did not do so in order to gain any advantage in the application of the Direction. His birth would not give them any particular advantage as their daughter already brought into play the need to consider the best interests of a child.

Ms Cebreros has tried to live in Albania so her evidence is not given from the point of view of a person who simply fears the unknown and is unwilling to face change. She has lived there and experienced the life it has to offer, learnt about some of the customs and explored the educational and health services available to her and her children. Having heard her evidence and that of Ms Tilly, I find that Ms Cebreros is a person who finds her situation intolerable. Her love for her husband and children is such that she wants them all to be together. In her mind, that would be best for the children and for her daughter, Belinda, who is particularly close to her father. At the same time, she recognises that Albania is not the best place in which to raise her daughter. If she is required to choose between living in Australia and living in Albania with Mr Lesi and her children, she will abide by his decision. She is already suffering from depression as a result of her situation.

While I find that Belinda is spirited I find on the basis of Mr Lesi's and Ms Cebreros' evidence and on the documentary material that has been submitted that girls are expected to be housekeepers. They are not expected to be spirited and independent. There is no expectation that they will be educated at the tertiary level. I accept that Mr Lesi would have the financial means to send his daughter to university but I also find that he feels that Albanian tradition and culture would bear down on him to such an extent that he could not go against it. Mr Lesi has gone against that tradition and culture in his relationship with Ms Cebreros but it is one thing to do so when the relationship began in Australia and not in Albania but it is another to go against it when a person is in Albania and wants to use Albanian schools and universities in order to break tradition and culture.

I am satisfied that it would be in Belinda's best interests were she to grow up in Australia than in Albania. Based on Ms Tilly's evidence and that of Ms Cebreros, as well as upon my observation of her, I find that Belinda is an energetic and spirited child. Her opportunities to fulfil her potential would be limited by her gender and she would have a very limited future to look forward to. Those opportunities would be further limited by her being of mixed parentage. I find on the basis of the evidence of both Ms Cebreros and Mr Lesi that there is little tolerance of what are considered in Albania to be Asian people. Belinda's future can reasonably be expected to be confined to housekeeping. This limited outlook can be contrasted with the opportunities available to her in Australia where her education and opportunities will not be limited by her gender. I have not had regard to Edmario's best interests. At this stage, he is still young enough to mould himself into life in either Australia or Albania. Were he to live in Albania, I find that, as a boy, Edmario would not suffer any discrimination and would be able to take advantage of the educational facilities offered in Albania and to aspire to any career that may be open to him in that country.

I find that Belinda and her father have a very close relationship. That closeness has continued while they were in Albania and has continued since their separation. I am satisfied that Mr Lesi has kept in regular contact with both his children and with Ms Cebreros and they have kept in touch with him. It requires no evidence to find that, as a general rule, it is preferable for children to live with both of their parents. In the circumstances of this case, I find that the general rule is applicable. If they do not live together, I am satisfied that Belinda would feel abandoned by her father. Edmario is too young to have formed a bond with his father. If they were all to live together in Albania, I find on the basis of Ms Tilly's evidence that Ms Cebreros would suffer from her inability to play what she would regard as a productive role in the community. That would prematurely affect the wellbeing of her children and particularly of her daughter.

The Direction requires that I balance the primary considerations against other considerations. The Australian community's expectations and its expectation that it will be protected and not put at risk is a primary consideration as are the best interests of his children. Hardship to Mr Lesi and his family are not primary considerations and, as I have said earlier, are not given the same weight as primary considerations. I must weigh all of the considerations. When I do that, I consider that the minimal risk to the Australian community of Mr Lesi's re-offending is outweighed by the interests of his daughter. Her best interests are clearly served by her remaining in Australia. They are further served if Mr Lesi were permitted to live with his wife and children. If Mr Lesi is not permitted to return to Australia, I find that Ms Cebreros will find herself obliged to take her children to Albania were Mr Lesi to decide that is where she should live. For the reasons I have given, I am satisfied that living in Albania is not in Belinda's best interests and, indeed, will be detrimental to her interests. Mr Lesi is not a person from whom the Australian community would expect to be protected and who it would expect to be deported. Were he to return to Australia, Mr Lesi would not expose the Australian community to anything other than the most minimal risk.

For the reasons I have given, I:

1.set aside the decision of the respondent dated 8 February, 2000; and

2.substitute a decision that the applicant not be deported from Australia.

I certify that the one hundred and twenty-four preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President),
Signed:          …………………………………..
  Paul Paczkowski      Associate
Dates of Hearing  17, 18 and 24 January, 2002
Date of Decision  3 April, 2002
Counsel for the Applicant            Mr Cole
Solicitor for the Applicant           McDonald Steed
Counsel for the Respondent        Mr Leerdam
Solicitor for the Respondent        Sparke Helmore

[2002] AATA 213

3 April 2002