De Los Reyes and Minister for Immigration and Multicultural Affairs - [2001] AATA 961

DECISION AND REASONS FOR DECISION [2001] AATA 961

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/252

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CHARLIE DE LOS REYES
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date23 November 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
   [Signed S P Estcourt]
  Deputy President
CATCHWORDS
Immigration – deportation – armed robbery – breaches of probation – real likelihood of recidivism – deportation order affirmed.

Migration Act 1958 – ss200, 201

REASONS FOR DECISION

23 November 2001 Mr S P Estcourt QC., (Deputy President)

This is an application to review a decision of the respondent of 11 October 2000 ordering the deportation of the applicant pursuant to s200 of the Migration Act 1958 ("the Act").
Section 200 of the Act provides that the respondent may order the deportation of a non-citizen to whom the division of the Act applies.
Section 201 of the Act provides that s200 applies to a person who is a non-citizen and who has been convicted of an offence when that person had been in Australia as a permanent resident for a period of less than 10 years.
The applicant, who was born in the Philippines on 3 July 1973, was permitted to permanently reside in Australia on 5 April 1990 pursuant to the grant of a dependent child visa. He arrived in Australia on 9 May 1990 aged 16 years.
On 6 September 1991 the applicant was charged with theft in the Sunshine Magistrates Court. He failed to appear and a warrant was issued for his arrest.
The applicant's criminal record from that date until 26 September 1996 was summed up by County Court Judge Hassett when sentencing the applicant on that latter date to 20 months imprisonment for armed robbery.   His Honour said:
"You have a number of prior convictions.    You have admitted prior convictions sustained from five court appearances between 28 April 1992 and 24 October 1995.   The offences for which you were variously dealt with on those occasions, included an offence of recklessly causing injury, which injury was caused by a knife which you had and which you apparently wielded in excessive self-defence.    In October 1992 you were dealt with for being in possession of a dangerous article, which I am told was a dart. In October 1994 you were dealt with for assault in company and for robbery.   Each of those events occurred at a railway station and to that extent is not dissimilar to the instant offence.
In October 1995 you were dealt with for possession of a prescribed weapon, which was a flick knife, which you claimed to have found on a train, but not to have used.   You were variously dealt with in relation to those matters, including the imposition of a sentence of six months' imprisonment which was served by way of an Intensive Corrections Order, Community-based Orders were made and following a breach of Community-based Orders on 24 January 1995 you were sentenced to serve and did serve three months' imprisonment.   You would have been released from that sentence, no doubt, about April 1995, which is about eight months prior to the commission of the instant offence.
In addition to those prior convictions, properly so-called, you were dealt with on 30 August this year at a Sunshine Court in relation to some 16 or 17 charges, one of which was robbery, and as a consequence of those matters you were sentenced to six months' imprisonment, which you are presently serving and would not be eligible for release from that sentence until some date in February, there having been some 20 days or so I think of some pre-sentence detention."

In total the applicant had been convicted of 30 offences between April 1992 and February 1997. The offence of armed robbery was detailed in a police summary as follows:

"SUMMARY OF OFFENCE
On Wednesday the 6th December, 1995, at approximately 5.00 pm the victim was waiting at the bus terminal in Alfrieda Street, St. Albans. After a few minutes the victim was approached by the defendant and another male person. The victim knew the person with the defendant as Wayne. He heard Wayne say to the defendant, "There's Joe." Both persons walked up to the victim and Wayne asked him if he had 2 dollars he could have. The victim removed his wallet from the pocket of his jacket and opened it up and took out a $2 coin and gave it to Wayne. Both Wayne and the defendant put their hands on the wallet, and the victim, fearful that they were going to steal it, pulled it away and put it back.
The defendant and Wayne then talked off. When they got around to the other side of the bus shelter, the defendant was saying to Wayne to go back with him to get the rest of the victim's money. Wayne did not want to do this and the defendant went back around the bus shelter to the victim on his own. He approached the victim and asked him to come around to the corner of the bus shelter with him. The victim went with the defendant and stood with his back facing the brick wall. The defendant stood in front of the victim and brought up his right hand and the victim saw that he had a knife in his hand. The defendant held the knife at the victim's stomach and told him to give him his money or he would stab him. The victim was in fear of his life and took out his wallet and gave him what notes he had, which was a twenty, ten and five dollar notes. The defendant told the victim he wanted everything and the victim gave him what coins he had. As soon as the victim gave the defendant the coins he took the knife away and walked off towards Main Road East. The money stolen totalled $37.95."

The applicant was last before a court on criminal charges on 6 February 1997 when he was convicted of robbery and assault with intent to rob and was sentenced to 6 months imprisonment.
On 27 May 1997 the applicant was released on parole, but his parole was cancelled as a result of his failure to comply with its conditions and a warrant was issued for his arrest on 25 July 1997.
On 9 September, before the arrest warrant was executed the applicant left Australia for the Philippines where he stayed for over a year, returning on 7 October 1998.
In 1992 the applicant had formed a relationship with Ms Kathy Talevska and on 20 August 1993 the couple had a child born to them, Kaycee Talevska.
The applicant's relationship with Ms Talevska ended in 1997.
Subsequently the applicant formed a relationship with Ms Liezel Alfaro and on 8 December 1999 the couple had a child born to them, Charliezel Alfaro.
On 13 January 2000 the applicant was arrested and returned to prison for the breach of his parole.
On 15 February 2000 the respondent gave the applicant written warning that he was at risk of deportation.
On 6 March 2000 the applicant was released from prison on parole.
On 20 June 2000, Ms Liezel Alfaro obtained an Intervention Order against the applicant based on allegations of violence, including violence towards his daughter Charliezel, preventing him from approaching or contacting her and her daughter until 1 June 2004.
Shortly prior to 12 October 2000, the applicant again had his parole cancelled for breach of conditions. He had at that time ceased living with his father who did not know his whereabouts.
The applicant when he is not in prison sees his daughter Kaycee on weekends and although he has little to do with Ms Talevska, it is clear from the evidence she gave to the Tribunal that she facilitates Kaycee's sending of letters and cards and presents to him whilst he is in custody.
The applicant has not told Kaycee of his imprisonment or possible deportation, but tells her he is working a long way from home. Ms Talevska's evidence was that the truth would break her daughter's heart.
The applicant no longer sees or has any contact with Ms Alfaro or their daughter Charliezel.
The applicant obviously comes from a loving family. He was effectively raised in the Philippines, until the time he came to Australia, by his grandparents. His mother and father gave evidence that this was a custom with a first born child and that their parents/parents-in-law loved the applicant very much.
Mr and Mrs De Los Reyes both gave evidence that they would be devastated if their son was deported from Australia, because their mother/mother-in-law was not happy to give her grandson up to when they came to Australia with their two younger children in about 1987. They were delighted when the applicant joined them in Australia in 1990, and if he were deported they said, it would be like losing him a second time.
The Tribunal is satisfied that the applicant's parents would be emotionally distressed and would suffer a significant degree of hardship if he were deported as would his brother and sister who also live in Australia and who gave evidence to that effect.
The Tribunal is also satisfied that the applicant's opportunities if deported, would be less than in Australia and that his grandparents, now old and in ill health, would be far less able to care for him than they were 10 or 11 years ago. (Although it should be noted that the applicant is now a man of 28 years of age).
In this matter the Tribunal is bound in the exercise of its discretion whether to order a person's deportation by the Minister's General Direction - Criminal Deportation - No. 9.
Under the Direction, the degree of hardship which may be caused to the deportee or to Australian citizens who are members of the potential deportee's family are two relevant secondary considerations which must be balanced against the two "primary considerations", namely the expectations of the Australian community and the best interests of any child of the applicant.
The first of those two primary considerations is comprised of two aspects namely:
(a)the expectation that the Australian community will be protected and not put at risk.
(b)the expectation that non citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
Further, pursuant to the Direction, the following factors are 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 crimes;
(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.
While the applicant's conviction for armed robbery involved only a small amount of money, the uncontradicted evidence is that it was carried out at a bus station on an individual with a knife. That it is a very serious offence is clear. The penalty of 20 months imprisonment reflects that fact. Additionally, under the Direction it is the Government's view that armed robbery is a "very serious" offence.
As to recidivism, the applicant has a bad criminal history given his relatively short period of years in Australia, and although he has been offence free for some time, part of that time has been out of Australia, and part of it in custody in Australia. The Tribunal finds that given that the applicant's history of offending is during years when he had the support and advice of his parents in Australia, there is, despite his assurances to his mother and to the Tribunal, a real likelihood he would offend in the future.
As to deterrence, in general terms the applicant's deportation is likely to have an effect on non-citizens in Australia with respect to the commission of crimes of violence.
In the Tribunal's views the expectation of the Australian community in this case outweighs the other primary consideration of the best interests of the applicant's children and also the "other consideration" of the hardship to the applicant and his family brought about by being separated for a second time.
The applicant's daughter Kaycee no doubt loves her father and frequently asks the applicant's parents where he is. She has however, had very little contact with him in recent time and believes that he is working a long way away. If the applicant is deported that belief in effect becomes a reality. No doubt, in time, she would learn the true facts of the applicant's offending in any event.
The best interests of the applicant's daughter Charliezel do not require the presence of the applicant in Australia in view of his lack of contact since he separated from her mother, her very young age and the fact of the Intervention Order and, notwithstanding his daughter Kaycee's attachment to the applicant, the Tribunal is of the view that her best interests do not outweigh the other primary consideration.
There are no other considerations contained in General Direction No. 9 which, in the Tribunal's view, are of relevance in this application, and accordingly the decision of the Tribunal is that the decision under review be affirmed.
I certify that the   preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC
(Deputy President)
Signed:         K L Miller.............................................................
  Personal Assistant
Date/s of Hearing  23 October 2001
Date of Decision  23 November 2001
Counsel for the Applicant         Mr H Magistrado
Solicitor for the Applicant          Fernandez & Johnson
Counsel for the Respondent    Mr G Boyd
Solicitor for the Respondent    Clayton Utz