Chubb and Minister for Immigration and Multicultural Affairs

[2000] AATA 645

DECISION AND REASONS FOR DECISION [2000] AATA 645

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/198

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      KEITH CHARLES CHUBB          
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTRUAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date3 August 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – abhorrence of crime – effect of general deterrence – best interests of children – hardship to applicant and family.
Migration Act 1958 s 200
Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713

REASONS FOR DECISION

3 August 2000         Deputy President DP Breen, Presidential Member                  

1. This is a review of a decision made on 8 February 2000 by a delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant under Section 200 of the Migration Act 1958.

2. The matter was heard by me on 29 and 30 June 2000.  The applicant, Keith Charles Chubb represented himself.  The respondent Minister was represented by Mr D Kirchhubel of the Australian Government Solicitor's Office.

3. Oral evidence was presented at the hearing by the applicant, Mrs Leiloa Chubb, the applicant's wife, Mr Phillip Laumann, the applicant's brother-in-law and Pastor George William Stubbs, a Prison Chaplain.  The following documents were taken into evidence.

• Exhibit 1            "T" Documents

• Exhibit 2            Bundle of Course Certificates

• Exhibit 3            Course Progress Reports

• Exhibit 4            Letter from Queensland Community Corrections Board dated   19.4.00 to applicant

• Exhibit 5            Work and Behaviour Reports

• Exhibit 6            Reference from GJ Davies dated 13.12.99

• Exhibit 7            Letter from Irene L Williamson dated 8.6.00

• Exhibit 8            Reference from Chaplain G Stubbs dated 15.2.00

• Exhibit 9            Reference from Pastor N Faataape dated 23.2.00

• Exhibit 10          Reference from Phillip Laumann dated 1.6.00

• Exhibit 11          Reference from Darren Green dated 28.6.00

• Exhibit 12          Letter from the Applicant dated 23.6.00 to Tribunal

• Exhibit 13          Reference from Michelle Robinson undated

• Exhibit 14          Reference from Aleaha Schipper undated

• Exhibit 15          Psychologist's Review Report dated 10.3.00 and attachments

• Exhibit 16          Two letters from New Zealand Police to applicant dated 22.2.00   and 27.4.00

• Exhibit 17          Children's School Reports

• Exhibit 18          Next of Kin Particulars from Corrective Services File

1. Mr Chubb is a New Zealand citizen. He has regularly visited Australia since 1980 and has resided predominantly in this country since 1992. In February 1998 he assisted three prisoners in their attempt to escape from the Borallon Correctional Centre for which he was convicted and sentenced to an effective sentence of 9 years. He had been resident in Australia for 8 years and 6 days at the time of the offence. It is this conviction which brings him within Section 200 of the Migration Act 1958.

2. The applicable Ministerial Direction is Direction No 9 – General Direction – Criminal Deportation.  The Direction states that the primary considerations are the expectations of the Australian community and, where an applicant is involved in a parental relationship with a child, the best interests of that child.

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

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

5. In New Zealand, the applicant's criminal history begins in 1983 and is as follows.

• Possess offensive weapon

• Minor found in bar

• Injuries by unlawful act

• Possession of cannabis

• Drive with excessive blood alcohol (three separate charges)

• Owner or hirer gave false details

1. No term of imprisonment was imposed for any of these offences.  However, at the time of this hearing, the applicant was wanted on a number of warrants for using a document for pecuniary advantage and non-payment of fines.  It was the applicant's evidence that he was unaware of these warrants and was making attempts to rectify the situation.

2. The applicant's criminal history in Australia is as follows.

• In 1981 the applicant committed an offence of break, enter and steal in company and breached the Bail Act.  He was dealt with for these offences in 1997 and was put on a good behaviour bond.

• Between 1994 and 1996 he was charged with speeding on a number of occasions and for breaching the Fine Option Orders imposed.

• In 1996 he was charged with possession of a motor vehicle with intent to deprive and fined $410.

• The applicant committed the following offences between December 1997 and February 1998 and was sentenced to various terms of imprisonment.

• Possession of weapons – 6 months

• Possession of dangerous drugs – 7 days

• Aiding persons to escape from lawful custody – 6 years

• Acts intending to prevent detention – 9 years

• Unlawful use of a motor vehicle – 2 years

• Unlawful possession of a motor vehicle – 2 years

1. The early criminal history of the applicant exhibits at least a casual attitude to compliance with the law.  His offences in early 1998 are, however, extremely serious.  The applicant helped organise the escape of three dangerous inmates from the maximum security section of the Borallon Correctional Centre.  He involved two young men from the Maori community who looked up to him and introduced them to serious crime.  He supplied the weapons, ammunition, bolt cutters and getaway cars.  When the escape was interrupted by a random perimeter patrol, he opened fired on the vehicle hitting it eleven times and injuring the officer who was driving.  He then drove the getaway vehicle recklessly through the streets of the south-western suburbs of Brisbane in an attempt to outrun the Police.  All of this was done out of greed, the applicant expecting to receive $150,000 from the escapees for his assistance.

2. These are crimes which strike at the heart of the criminal justice system and are regarded as abhorrent by the Australian community.  The liberating of dangerous criminals puts the entire community at risk, particularly those residents living near prisons.

3. The applicant has shown some signs of rehabilitation in that he has successfully completed courses such as Anger Management, Cognitive Skills and Substance Abuse Education.  However, the risk of recidivism was assessed by a Senior Correctional Services Officer in August 1999 as being medium.  That report contained the following observations.

   "He has limited insight into his offending and does not appear to understand that the Police and Custodial Officers who were fired at by him and his associates were in real danger of being hurt.
   He is extremely immature and seems to have seen something glamorous in the prisoners he visited in prison and through them he began to cultivate more friends among them.  He says he became enmeshed in their schemes and in the end felt he was in too far to withdraw.  He does not see himself as a major player in the affairs.
   It may have been that he was seeking to inject some excitement into his life and he felt his involvement with criminals was a way of providing this, particularly if he were able to help release these people from prison."

1. The applicant's evidence at the hearing was in line with these observations made by the Correctional Services Officer, although it is clear from the comments by the Sentencing Judge that Mr Chubb's role in the offences was quite instrumental.

2. At the hearing Mr Chubb presented letters of support from Ms Aleaha Schipper and Ms Michelle Robinson and submitted that these letters showed his compassion for others and his willingness to give back to the community.  Given the notoriety of these two prisoners, the comments in the August report and the applicant's own evidence of his fascination with notorious criminals, the Tribunal is sceptical of this interpretation of his actions and sees this as rather the continuation of a negative trend in the applicant's life.

3. Even if the Tribunal were to assess the applicant's risk of recidivism as low, it would not weigh this primary consideration in his favour due to the abhorrence of his crime and its implications on the protection of the Australian community.  This is a case in which the deterrence aspect of deportation on other non-citizens carries real weight.  This was a highly publicised case which involved notorious criminals and the corruption of two young men.  Mr Chubb's participation in the offence was widely known in the prison as well.  As such, deportation in this case would have a significant deterrent effect.  Therefore, the first primary consideration is firmly balanced in favour of deportation.

4. The second primary consideration is the best interests of Mr Chubb's children.  He has three children, Jesse aged 9, Etelini aged 7 and Alesana aged 5, all of whom are Australian citizens.  It is conceded by the respondent that the children share a strong and loving relationship with their father.  If their father were deported and they do not relocate to New Zealand, they still have their mother and other family members as well as their friends in Australia.  Although they may suffer some difficulty adjusting to not seeing their father any more, they have been living without him for over 2 years and although the oldest child is finding this difficult, the other two children are doing well in school and seem well-adjusted.  In fact, it has only been recently that the school has realised that the children's father is in prison and are now making sure the children receive special attention and extra care.

5. If they relocate to New Zealand they will be with their father and both of their parents still have family in New Zealand, so they will have a well-established support structure.  Given their young ages they should be able to assimilate effectively and the standard of education and health care in New Zealand is sufficiently similar to that in Australia so as not to disadvantage them to any great degree.

6. The Ministerial Direction provides that, in general, the children's best interests will be served if they remain with their parents.  However, this is not the case where the children's interests would be so prejudiced as to preclude deportation, particularly given the seriousness of the crimes involved.

7. The secondary considerations under the Direction include the degree of hardship suffered by the applicant and by Australian citizens or permanent residents if the deportation occurs.

8. If the applicant were deported he may face losing contact with his wife and children as his wife is not sure if she will return to New Zealand with him.  He will have to re-establish himself on return.  However, he has spent most of his life in New Zealand which should make this easier.  His family also resides there and although their relationship can be described as less than close and they all lead their separate lives, they are not completely estranged.  To the contrary, the family stays at the applicant's house every year when they come to visit Australia.

9. The applicant also has a fairly good work record both in New Zealand and Australia.  This record, combined with the many vocational skills he has developed whilst in prison, should increase his chances of finding employment in New Zealand.  As such, the hardship likely to be suffered by the applicant is moderate.

10. Mrs Chubb will also suffer some hardship if the applicant were deported.  If she remains in Australia she will lose her relationship with her husband and be bringing up her children on her own.  She lacks confidence in using the English language, running the household, particularly the financial aspects of this, and assisting the children with their schooling.  She does, however, have the support of her family, her local church and, now that she has made the school aware of her situation, of her children's school.  If she chooses to follow her husband to New Zealand she still has family there and has lived in that country for most of her life.  Some hardship will be suffered due to the stress of relocating but, again, this will only be temporary.  As such, the level of hardship suffered by Mrs Chubb is dependent on whether she chooses to follow her husband or not.

11. The applicant referred the Tribunal to the case of Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 and submitted that this was a case where the likely hardship to himself and his family outweighs even his serious criminal conduct. It is the Tribunal's opinion that it does not.

12. Although the applicant and his family will suffer some hardship it does not outweigh the seriousness of the crime committed.  This was a crime which put the Australian community, particularly that part of the community residing in Brisbane, at serious risk.  It was premeditated, involved the use of extreme violence and resulted in the corruption of two young men.  The applicant was actively involved in all aspects of the crime and it is one which the Australian community regards as abhorrent.

13. For these reasons, the Tribunal affirms the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  29.6.00, 30.6.00
Date of Decision  3.8.00
Rep. for the Applicant              Applicant appeared in person

Solicitor for the Respondent    Mr D Kirchhubel, Australian Government Solicitor's Office