Craig and Minister for Immigration and Multicultural Affairs

[2000] AATA 898

DECISION AND REASONS FOR DECISION [2000] AATA 898

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/296

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      DOUGLAS KEITH CRAIG           
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date13 October 2000

PlaceBrisbane 

Decision      The Tribunal affirms the decision under review.           

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - deportation - abhorrence of crime - delay between offence and conviction - ties to Australia.

Migration Act 1958 s 200
SRT v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 234
Deng v Minister for Immigration and Multicultural Affairs [1999] AATA 386
[W1999/402] and Minister for Immigration and Multicultural Affairs [2000] AATA 696

REASONS FOR DECISION

13 October 2000     Deputy President DP Breen, Presidential Member                  

1. This is a review of a decision made on 2 March 2000 by a delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant, Douglas Keith Craig, under Section 200 of the Migration Act 1958.

2. The matter was heard by me on 28 and 29 August 2000 and resumed on 6 October 2000 for final submissions.  Mr Craig represented himself and Mr E Howell of the Australian Government Solicitor's Office represented the respondent Minister.

3. The applicant gave oral evidence at the hearing.  The following documents were placed into evidence.

• Exhibit 1            "T" Documents

• Exhibit 2            Corrective Services documents provided by Douglas Keith Craig

• Exhibit 3            References in support of applicant

• Exhibit 4            Report for South Queensland and Regional Community   Corrections Board dated 24.1.00

• Exhibit 5            Letter from Elaine Joseph and Memorandum to Mr Craig dated   9.11.99

• Exhibit 6            Psychologist's Report for Sentence Management

• Exhibit 7            Sentence Management Review dated 10.5.99

• Exhibit 8            Sentence Management Review dated 5.1.99

• Exhibit 9            Letter from applicant to his sister

1. Mr Craig is 62 years of age and a New Zealand citizen. He arrived in Australia in October 1960 at the age of 22 years and has not departed since. In April 1997 he was convicted of indecently dealing with a girl under the age of 17 years. The offence was committed in 1964. He was sentenced to a term of imprisonment of 12 months although this was suspended after four months for five years. It is this conviction which brings him within Section 200 of the Migration Act.

2. The applicable Ministerial Direction is Direction 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.  The latter consideration does not apply in this case.

3. 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, the risk of recidivism and the deterrent effect of deportation on other non-citizens.

4. While the offence committed in 1964 is the only offence on the applicant's criminal history which enlivens the power in Section 200, the Tribunal must have regard to the totality of the applicant's criminal conduct in assessing the Australian community's need for protection.

5. The applicant was convicted in New Zealand in 1960 of unlawfully converting a motor car and was sentenced to two years probation.  In 1978 the applicant was convicted on two charges of indecently dealing with a girl under 14 years for which he was sentenced to eighteen months imprisonment.  The girl in question was his step-daughter.  In 1995 he was again convicted on charges of indecent dealing with a girl under 14 years between 1975 and 1982.  There were three complainants, one of whom was his step-daughter.  He was sentenced in total to two years imprisonment to be suspended for five years after serving four months.  The applicant was considered for deportation in October 1996 and was issued with a warning.  In April 1998 the applicant was convicted of assault occasioning grievous bodily harm and was sentenced to three years imprisonment with an additional term of nine months imposed in relation to his suspended sentence.

6. Sexual offences against children are regarded as very serious crimes under the Ministerial Direction and abhorrent by the Australian community.  Likewise, offences involving the use of violence are regarded as a serious infringement on the protection of the Australian community.  Although the first conviction was eighteen years after the applicant entered Australia and the second conviction occurred some seventeen years later, the actual offences are not so sparsely spread.  The sexual offences against children occurred over a seven year period.  They involved a serious breach of trust and occurred even after the applicant had been jailed for like offences.  These offences were considered so serious by the Sentencing Judge that despite the fact that they had occurred more than fifteen years previously, he still felt a custodial sentence was appropriate.  The final offence in 1998 was described by the Sentencing Judge as a savage and vicious attack with a dangerous weapon.

7. Before the Tribunal, Mr Craig maintained his innocence in relation to the charges dealt with in 1995 and 1998.  He blamed an anxiety attack in 1995 for his plea of guilty and a Police conspiracy for his conviction in 1998.  Irrespective of Mr Craig's claims, he comes to the Tribunal with those convictions on his record and it is not open to the Tribunal to impugn those convictions (see SRT v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 234).

8. Considering the risk of recidivism, it is accepted that the applicant is of a low risk in relation to the offences of indecent dealing.  He completed a number of courses in relation to his sexual offending and has not re-offended in that manner since 1982.  In relation to the offence of grievous bodily harm the applicant maintains his innocence and refuses to acknowledge that his actions were in any way inappropriate.  The details of the offence are quite disturbing.  Even on Mr Craig's version, which was not accepted by either the jury or the Appeal Court, the offence shows a willingness on the part of the applicant to take the law into his own hands.  The applicant's obsession with his conspiracy theory in relation to the offence is also of concern.  His desire to "bring down" the Police Officers and his victim suggests a possibility that if legal avenues do not assist in his cause he may again take the law into his own hands.  As such, while the risk to the protection of the Australian community may be low, it is not fanciful and remains a real risk.  The applicant's claim that he is slow to anger and quick to forgive is belied by the rest of his evidence.

9. In relation to the general deterrence which deportation has on other non-citizens, this is not a case in which it would have any real significance.

10. The Australian community does expect to be protected from abhorrent crimes and that non-citizens who are convicted of such will be removed from Australia.  This aspect of the Ministerial Direction does not preclude or obviate the necessity to weigh up all pertinent considerations (see Deng v Minister for Immigration and Multicultural Affairs [1999] AATA 386) but it highlights the relevance of the views of the Australian community in respect of particular crimes.

11. The Australian community does view sexual offences against children with abhorrence and this attitude is not diminished simply because the offences remained hidden for many years.

12. The primary considerations are balanced in favour of the deportation decision being upheld.

13. The secondary considerations include the degree of hardship suffered by the applicant and by other Australian citizens or permanent residents.

14. Mr Craig has lived in Australia for forty years.  That in itself creates significant ties to the Australian community and weighs heavily against deportation.  However, the applicant is not in a relationship with an Australian citizen or permanent resident.  On the face of Exhibit 9, he appears to be estranged from his sister, his only relative in Australia.  The applicant referred to friends of his who would be saddened by his deportation but there was only one character reference from a person outside of the prison system and that was the local mechanic.  No other friends gave evidence to the Tribunal and there were no verifiable offers of support for Mr Craig from those in the community to which he would be returning.  This suggests that despite the applicant's length of years in this country his ties are limited.  The applicant claims that he has an equitable interest in some land in Queensland but it has yet to be proven.

15. The relocation to New Zealand for a man of Mr Craig's years would undoubtedly cause hardship, particularly as he knows few people there and has not returned to that country for many years.  However, on the evidence it appears that he would have to completely re-establish himself in Australia as well upon release, his criminal activity having cost him most of his ties to this country.

16. The Tribunal was referred to the case of W1999/402 and Minister for Immigration and Multicultural Affairs [2000] AATA 696 by the respondent who submitted that the case was very similar and should be taken into account with a view to consistency of decision-making. This case simply confirms the view that an offence can still be satisfactory grounds for deportation even if it occurred many years ago and the conviction was not recorded until after the applicant had been in the country for ten years. Just because an applicant avoided conviction for years and has built up ties to Australia during that time does not mean they will automatically escape deportation. Each case turns on its own facts and the gravity of the offence must be weighed against the significance of those ties and the risk that such offending behaviour will continue in the future.

17. In conclusion, Mr Craig has been convicted of a number of very serious offences, some of which the Australian community regards as abhorrent.  He committed some of these offences despite previous incarceration and a warning of deportation.  While he presents a low risk to the Australian community in terms of re-offending, it is nonetheless a real risk.  His ties to the Australian community are limited despite the length of his residence in this country.  While he will suffer hardship if he relocates to New Zealand, it is not extreme hardship and does not outweigh the other considerations.

18. For these reasons the Tribunal affirms the decision under review.

    I certify that the 21 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  28.8.99, 29.8.99, 6.10.00
    Date of Decision  13.10.00
    Rep. for the Applicant              Applicant appeared in person

    Solicitor for the Respondent    Mr E Howell, Australian Government Solicitor's Office