ELIA TOMA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 431
•9 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 431
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1177
GENERAL ADMINISTRATIVE DIVISION ) Re ELIA TOMA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr P W Taylor SC, Senior Member Date9 June 2010
PlaceSydney
Decision The decision under review is set aside
..................[Sgd].........................
Mr P W Taylor SC
Senior Member
CATCHWORDS
MIGRATION – visa cancellation – failure to pass character test – discretion – primary considerations – protection of the Australian community – best interests of children – other considerations – family ties – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth) s 501
OTHER
Direction [No 41] - Visa refusal and cancellation under s 501
REASONS FOR DECISION
9 June 2010 Mr P W Taylor SC, Senior Member 1.Mr Toma is a 44 year old former Iraqi refugee. He emigrated to New Zealand in 1992 and became a New Zealand citizen. Since August 1995, until the decision that is the subject of these proceedings, he held a Class TY Subclass 444 Special Category (Temporary) visa. It permitted his entry to, and his residence in, Australia.
2.Fourteen years ago, on 5 September 1996, Mr Toma stabbed and killed one of his brothers-in-law in a fight at Fairfield, New South Wales. The fight was the culmination of hostility that arose out of a family argument.
3.On 19 June 1998 Mr Toma was convicted of his brother-in-law’s murder. He was sentenced to 18 years imprisonment, with a non-parole period of 13 years 6 months. Mr Toma appealed against both his conviction and sentence. The appeals were dismissed on 22 November 1999.
4.Mr Toma’s earliest possible release date, contingent on being granted parole, was 4 March 2010. He is still in custody. If he is not granted parole, his full sentence will not expire until 4 September 2014.
The visa cancellation decision – 25 February 2010
5.The presently relevant legal effect of Mr Toma’s lengthy custodial sentence is that it attracted the operation of s 501(7)(c) of the Migration Act 1958 (Cth) (the Migration Act). It means he has a substantial criminal record for the purpose of s 501(6). Because of that substantial criminal record he does not pass the character test in s 501. Because he does not pass the character test, s 501(2) of the Migration Act authorises the Minister to cancel Mr Toma’s visa. On 25 February 2010, the Minister did decide to cancel Mr Toma’s visa.
6.Mr Toma does not, and indeed cannot, challenge the Minister’s finding that he does not pass the character test. He applies to review the Minister’s decision solely on the ground that the decision to cancel his visa was not the preferable decision in his particular circumstances.
Direction 41
7.In this review of the cancellation decision, the Tribunal must comply with directions the Minister has made under s 499 of the Migration Act. The current direction - “Direction [No 41] - Visa refusal and cancellation under s 501” (“Direction 41”) took effect on 15 June 2009.
8.Direction 41 describes the object of the Migration Act as that of regulating the presence of non-citizens in Australia. More specifically, the purpose of that regulation is to protect the Australian community from unacceptable risks of harm as a result of the conduct, especially the criminal conduct, of non-citizens. The Direction provides general guidance for the decision making process involved in visa cancellation decisions. That guidance requires the decision maker to consider both the nature, and the risk, of any harm the particular non-citizen may cause. The Direction highlights a range of other factors that are relevant to the exercise of the visa cancellation power. They include (i) the length of the person’s Australian residence, (ii) the extent to which that period occurred during the person’s minority, (iii) relevant international obligations, (vi) the person’s family ties and connections, both in Australia and the country to which they would be returned, and (v) the person’s general personal circumstances.
9.Apart from that statement of objectives and general guidance, Direction 41 mandates that any visa cancellation decision takes into account four primary considerations. They are primary in the sense that they must be taken into account where they are directly relevant. They must also generally be given more weight than any other relevant consideration. The primary considerations are:
(a)the protection of the Australian community from serious criminal or other conduct, particularly crimes involving violence
(b)whether the person was a minor when they began living in Australia
(c)the length of the person’s Australian residence before they engaged in the relevant misconduct
(d)relevant international obligations – principally relating to the rights of children and refugees.
Primary consideration 1: protection of the Australian community
10.The two principal matters that require evaluation under this primary consideration are (i) the nature and seriousness of the person’s conduct, and (ii) the likelihood that the person will re-offend.
The nature and seriousness of Mr Toma’s conduct
11.In September 1996 Mr Toma was living at Fairfield with his wife Shokriya and their two young children. Mrs Toma had two married sisters, Janet and Jaklin, who lived nearby with their husbands. They were all Iraqi immigrants who shared an Assyrian background. Mrs Toma, her sisters and their spouses were also related by both blood and marriage. Mr Toma’s absence of blood relationship and different place of origin in Iraq resulted in him having, or at least perceiving himself as having, something of the status of a comparative outsider within the family.
12.On Friday 30 August 1996, a few days before the fatal fight, there was a family wedding. Mr Toma drove his father-in-law, and some other relatives, to and from the wedding. Some kind of argument developed in the course of the evening, and perhaps more heatedly during the return journey to his father-in-law’s home. It involved criticism of Mr Toma and unfavourable comparison, by his father-in-law, with Jaklin’s husband. Because of the argument, Mrs. Toma and their two children stayed with her parents. She did not accompany Mr Toma to their home, nor did she return to it in the following days.
13.Sometime before the evening of Wednesday 4 September 1996, Mrs Toma and their children went to stay with her sister Janet. She lived with her husband in a block of units at Nelson Street, Fairfield. The unit where Mr and Mrs Toma lived was close by in an adjoining, or nearly adjoining, block. That evening Mr Toma drove into the driveway of the units where Janet lived. There was an angry exchange. Mr Toma was standing somewhere outside the unit block. His wife, her sister Jaklin, and some of the other relatives were standing on the balcony of Janet's unit.
14.Mr Toma was armed with a penknife. It had an 8½ cm long blade. It was not a big knife, but it was sufficient to inflict a significant injury if its wielder so intended. It appears (from some of the statements contained in his 5 September 1996 record of interview) that much of Mr Toma’s anger was fuelled by resentment and hostility towards Jaklin’s husband. This was because of what Mr Toma perceived to be his influence in the family, and his responsibility for the family difficulties Mr Toma was having. Mr Toma brandished the knife. Mr Toma denied in his evidence in the present proceedings, but at his trial others attributed to him, and the sentencing judge accepted he made, a threat to make Jaklin "a widow tonight".
15.This threat, although it is chilling in the light of what happened later, appears not to have been understood literally at the time. This is because the sentencing judge attributed to Jaklin the response that, if Mr Toma wanted to fight his brother-in-law, he could find him at a nearby shop. A wife volunteering this information is not readily reconciled with her having a contemporaneous apprehension of a real risk of her husband being fatally wounded.
16.But it does convey that Mr Toma wanted to fight. He went to the shop and he tried. Again he produced the knife. But the shop was a meeting place for members of the local Assyrian community. They restrained both of the would-be combatants. Mr Toma agreed to leave. He went back to Jaklin’s house. He collected his wife and children. They went home together.
17.Mr and Mrs Toma’s return home together would suggest some conciliatory cooling of emotions on his part. That cooling was not reciprocated by his brother-in-law. Later in the evening, after talking with others who saw what had happened at the shop, and earlier at Jaklin’s unit, Mr Toma’s brother-in-law became incensed. He collected a metal steering wheel lock from his car. He walked to the backyard of the property next to where Mr Toma lived. He called out to Mr Toma, challenging him to come out and fight. He was loud and abusive. Mrs Toma, and some of the men who had been at the meeting place, tried to get him to stop and go away. But he persisted.
18.Mr Toma said in his evidence in these proceedings he was concerned that if he did not go down, his brother-in-law would have come up to get him. It is impossible to say, this removed from events, whether that was really likely to have happened. But the brother-in-law’s conduct does seem to have been determined. In any event Mr Toma decided to go down to confront him. He armed himself with the knife he had before. He took two more knives from the kitchen. He also had a table leg and picked up a rock in the backyard. With the open pen knife in his hand, he confronted his brother-in-law in the adjoining backyard. The bystanders took the pen knife from Mr Toma. They sought to restrain them from fighting. But both would-be combatants evaded restraint and aggressively attacked each other.
19.Exactly what happened in the course of the following few minutes was the subject of differing accounts at Mr Toma’s trial. He claimed in his evidence in these proceedings (he did not give evidence at his trial) that he was hit on the head by others, before he started using one of the knives. Perhaps consistent with, but not certainly probative of that claim, he suffered some injuries himself. These included abrasions to his right arm, the right side of his chest and between the shoulder blades. He had a lump on his head and a small laceration between his shoulder blades, as well as two lacerations on the back of his right shoulder.
20.In a 12 January 1998 report, Dr Westmore recounts a version of events on the night of 4 September 1996 that he obtained from Mr Toma in an interview at the Long Bay Prison complex on 10 January 1998. This account is difficult to follow, perhaps partly because of the interview circumstances and partly because of the language difficulties to which Dr Westmore referred on the first page of his report. In the account Mr Toma gave Dr Westmore, he identified his deceased brother-in-law as the principal aggressor. He said he was scared by the yelling and abuse from his brother-in-law and by the fact that there appeared to be many other people with him. He was frightened they would come up to the unit and kill him. That was why he armed himself with the other knives from the kitchen. When he went downstairs he did pick up at least one rock from the garden and he opened up his pocket knife. Consistent with his evidence in these proceedings, he also claimed in this interview that it was the other men present who hit him first. It was only after two or three times when he was hit on the head that he “lost everything”. That was why he fought with the knife. He just lost control and he didn't know what he was doing.
21.What he was actually doing was the subject of the sentencing judge’s remarks. The sentencing judge said that after others disposed him of the knife he had in his hand, Mr Toma drew the other knives he had put in his coat. The brother-in-law hit Mr Toma, perhaps with the steering wheel lock or some other implement. Mr Toma used the knives. He slashed at his brother-in-law at least three times. He stabbed him twice. One of the stab wounds penetrated his heart. He died of that wound, a few days later.
The issue of seriousness
22.It is undoubtedly accurate, but not particularly informative for the purpose of applying Direction 41, to characterise what Mr Toma did, in fatally stabbing his brother-in-law, as a serious crime. It is accurate for the obvious reason that his offence involves a grave contradiction of the purpose of the discretion – protection of the members of the Australian community. It is not particularly informative, as an indication of the risk Mr Toma presents to the community, because of the singularity of the circumstances in which it occurred. The task required by Direction 41 is to address both the seriousness and the nature of the conduct, and to do so for the purpose of “assessing the level of risk of harm to the community”.
23.The notion implicit in the requirement to assess the “seriousness and nature of conduct” is that meaningful differences exist between both the types of violent offences from which the community is entitled to protection, and the circumstances in which they may occur. From the perspective of a potential victim of hypothesised criminal conduct, there may be an element of unacceptability about any implication that some kinds of criminal conduct are less significant than others. But paragraph 10.1.1(2) of Direction 41 provides a range of examples of serious offences. Murder and “any … form of unlawful killing” are the prime examples of serious crimes. Other examples suggest the element of seriousness relevantly includes (i) whether the offender’s victims were minors (ii) the sexual nature of the crimes (iii) the organised nature of the crimes and (iv) whether they were motivated by financial gain. No doubt it also includes the gravity of the harm realistically apprehended.
24.Nothing that can be said about the circumstances (as I have recounted them above), in which Mr Toma fatally stabbed his brother-in-law, detract from the seriousness of the consequences of his conduct. By the same token, it is objectively accurate to note that, at least in leaving his home and going downstairs and being willing to fight, Mr Toma was reacting to his brother-in-law’s aggression. To some extent that aggression continued during the actual fight. It is also accurate to note that Mr Toma’s crime, though deliberate, was neither planned nor carried out against a vulnerable person. Both Mr Toma and his brother-in-law were willing and, to a degree that it is now not possible to decide reliably, determined combatants.
25.The fight itself was the ultimate result of some kind of simmering family friction that had escalated into a very heated controversy. The brother-in-law sought out Mr Toma, after cooler heads had prevailed at the meeting place. He abused Mr Toma and challenged him to fight. He had good reason, from what had happened at the shop, to apprehend that Mr Toma might produce a knife. The fact that he had armed himself with the metal steering wheel lock is perhaps consistent with such an expectation. It at least evidences his willingness to hurt Mr Toma seriously. His total conduct, first in his abusive challenges and second in evading the restraint of the bystanders, bespeaks his determination to try.
26.Mr Toma’s response, in arming himself with three knives, confronting his brother-in-law’s abusive challenges, and also evading the restraint of the would be pacifiers, was no less determined. It evidences a willingness to injure that, whilst less deliberately conceived, was ultimately just as purposeful.
27.It is right to proceed on the basis that, at least for the circumstances that most immediately precipitated the fight, the brother-in-law was the protagonist. It is right to proceed on the basis that Mr Toma was prepared, at some risk of injury to himself, to inflict serious injury on his brother-in-law. It is not right to proceed on the basis that he set out deliberately to kill his brother-in-law.
The risk of repeated harmful conduct
28.The Minister contends there is a real risk Mr Toma might engage in further criminal conduct. In elaboration of this contention the Minister emphasises (i) the sentencing judge’s remarks (that the circumstances of the offence did not much moderate its seriousness) (ii) the evidence of Mr Toma’s behaviour in jail, (iii) the fact that he was refused parole in February 2010, and the reasons that were given for that refusal. Each of these matters requires careful consideration.
The sentencing judge’s remarks
29.Mr Toma did not give evidence at his criminal trial. His defence at the trial was that his brother-in-law was fatally wounded by an accidental or involuntary act. The suggestion was that the fatal wound had occurred in the course of pushing and shoving - and perhaps caused by the attempts of others to separate the two aggressors. In the light of the conviction, this defence must be taken to have been rejected.
30.Although he gave no evidence, the trial proceedings did include a contemporaneous account of events by Mr Toma. It was contained in an electronically recorded interview that he gave to police on 5 September 1996, just a few hours after the fight. He had apparently walked to Fairfield police station with one of his brothers. There he reported what had happened, and participated in the recorded interview.
31.Mr Toma’s police interview was admitted into evidence at trial. Only a small part of it has been produced for the purpose of these proceedings. In those passages Mr Toma admits, relatively clearly to my mind, that he stabbed his brother-in-law deliberately with at least one of the kitchen knives he took from his pocket after the bystanders took his pocket knife from him. Mr Toma said he was angry, so angry that he was “lost”. He conceded that “it shouldn’t have happened the way it did”.
32.The sentencing judge was not satisfied beyond reasonable doubt that Mr Toma had intended to kill his brother-in-law. But he did proceed on the basis that Mr Toma had deliberately armed himself with three knives, specifically against the contingency that one might be taken from him. He had used the knives (at least one of them) in the fight without concern about the consequences of so doing. He had intended to hurt his brother-in-law and was in reality, indifferent as to whether the hurt might be fatal.
33.The sentencing judge also commented that there was nothing in the record of the interview where Mr Toma conveyed any significant remorse for his brother-in-law's death. The sentencing judge imposed a sentence that reflected that absence of remorse. He remarked that general deterrence had a large part to play in the sentencing process, because of the circumstances of the matter. It is a reasonable, and I think a required, implication from the sentencing judge’s remarks that he considered the circumstances involved familial controversy exacerbated by the premeditated and deliberate use of knives in a violent confrontation.
34.The sentencing judge also had before him Dr Westmore’s 12 January 1998 report. I set out, in paragraph 20 above, part of the account of events Mr Toma gave to Dr Westmore. In his report, Dr Westmore went on to say, by way of a final conclusive assessment, that Mr Toma's:
... education and occupational opportunities have been limited by the circumstances of his early life. There is nothing to indicate he has a personality disorder, specifically no evidence to support an antisocial personality disorder. In this regard his risks to the general community in terms of further offending should be considered, low, probably negligible. This event appears to have been highly situationally specific, this also reduces his risk of acting in such a way in the future, whatever the outcome of the court case may be."
35.The sentencing judge explicitly accepted Dr Westmore’s opinion. He said that the offence was “very situationally specific” and that “there is a low risk of further offending”.
Mr Toma’s custodial history and behaviour
36.A 14 April 2008 single page report from the Area Correctional Manager of the Junee Correctional Centre (“Junee”) provided a very attenuated summary of Mr Toma’s prison history. There is a further report dated 14 August 2009 from the Mannus Correctional Centre (“Mannus”), to which Mr Toma was transferred in April 2009. These, with their attachments, appear to have been the only information available when the cancellation decision was made. According to the Junee Correctional Centre report, Mr Toma had been regularly employed in prison workplace activities. He was reported to have a high work ethic and to be punctual. However he had been relocated to other employment on some occasions because of "inappropriate and unwelcome comments towards female staff". He had been punished for a number of incidents (then a total of 13) involving either assault or various breaches of prison discipline. The Mannus Correctional Centre report stated that Mr Toma had completed a course on Managing Emotions, had started a TAFE welding course, and had applied for forklift and tractor courses when they became available. It noted he was on a waiting list for the Violent Offenders Therapeutic Program (“VOTP”). It also included a Work Readiness Report, which summarised Mr Toma’s employment performance at Mannus.
37.The April 2008 report from Junee Correctional Centre involves, as its brevity suggests, a considerable oversimplification. I will deal first with Mr Toma’s prison discipline record. By May 2010 Mr Toma had in fact been disciplined on 14 occasions. These involved the following matters:
(a)1998: one incident involving use of insulting language
(b)1999: two incidents involving the possession of unauthorized property
(c)2000: one incident of abusive language
(d)2001: three incidents of fighting or threatening behaviour
(e)2002: one incident of failing to comply with correctional Center routines
(f)2003: one incident of abusive or threatening language and one incident involving the possession of a prohibited article
(g)2005: one incident of behaving in a threatening manner (for which he was reprimanded and cautioned
(h)2006: an incident involving assault
(i)2008: one incident involving a fight
(j)2009: one incident involving a fight.
38.The sanctions imposed for these various prison offences were either short periods of cell confinement, or longer periods of being deprived of access to prison amenities. Since 2001, only the incidents in 2003, 2008 and 2009 involved punishment where Mr Toma was confined to his cell. This was for a total period of between 10 and 12 days (there is some ambiguity about the sanction for the last incident in February 2009). Only two incidents between 2002 and 2006 resulted in him being disqualified from access to prison amenities (for a total period of 35 days). All of the incidents were dealt with within the correctional services discipline regime. None involved further criminal proceedings being taken against him. None involved him causing any significant injury to anyone else.
39.The incidents involving language or other conduct offences are of no real consequence for present purposes. Robust, even offensive, language is likely to occur episodically in prison life. No doubt it is undesirable, and not to be tolerated. But the artificiality, strictures and frustrations of prison life are inherently likely to produce at least occasional outbursts. Mr Toma’s record suggests, and the circumstances I have examined in the prison records that were put into evidence confirm, that they were in that category. This is consistent with other accounts of his generally polite and compliant behaviour, at least in the later years, and some of which I will include later in these reasons. I note that the last incident of this kind occurred five years ago, in July 2005. It was dealt with by a caution and reprimand only. Before that the most recent incident was in December 2003, almost seven years ago. These incidents ought not to be regarded as having any real significance. They are not indicative of any real likelihood of Mr Toma engaging in relevantly harmful criminal conduct, either during his incarceration or following his release.
40.It is desirable to consider Mr Toma’s prison history in somewhat more detail than merely noting the number, and general nature, of his breaches of discipline. There are five reported breaches that involved fighting. The first of those occurred in 2001. It is an appropriate point from which to start an examination of his reported behaviour and performance.
41.There were two incidents of fighting in 2001. One was in February and the other in August. They were punished by short periods (two and three days) of cell confinement. They did not involve any serious injury. More concerning than these two incidents are reports that during this period Mr Toma had developed a paranoid thought disorder. His suspected paranoia was that the police and prison officers were corrupt. More specifically he believed that the prison governor was trying to poison him. This seems to have come about because of a preoccupation with his physical health, for which he had been referred for psychological assessment in October 2000. He had been referred for psychiatric assessment and placed on antidepressant medication. But he was also told that he did not have a mental health problem only a physical one. His problems seem to have come to a head around August 2001. There are reports that, at that time, he threatened to cause people outside the prison to harm the deputy governor of the jail. The deputy governor was sufficiently concerned about these threats to request Mr Toma’s transfer to another institution.
42.There is also a psychologists report dated 3 August 2001. It records that Mr Toma was highly dependent on family contact to maintain his well being. He had requested a “B” classification to the John Maroney Correctional Centre (near Windsor) to facilitate contact visits from his family. He was so concerned about his family contact that he alluded to suicide if he could not get a transfer. The psychologist noted that, up until a recent change in cell arrangements at the Lithgow Centre, Mr Toma had been making improvements. She hypothesised that the recent changes, plus his family anxiety, might have disrupted the progress he was making and be linked to the threats he had made. She also expressed concern that Mr Toma had mental health problems that had not been addressed. She noted that she had not received any feedback on any of the referrals she had made. She reported that he required a full and urgent psychiatric assessment. She noted that Mr Toma’s English had improved markedly but was still likely to inhibit effective mental health assessment. She thoughtfully noted that it was important to view Mr Toma’s difficulties with an adequate understanding of his cultural framework. She expressed concern that he would continue to deteriorate.
43.By September 2001, Mr Toma had been moved to the Long Bay Hospital for psychiatric assessment. On 6 November 2001, the Serious Offenders Review Council (“SORC”) recommended that he remained at Long Bay Hospital. However, the SORC letter noted there were limited placement offers available to him. This was because of threats that had been made against him at Long Bay and his unwillingness to be placed in protective custody. SORC informed it was seeking advice about his appropriate future placement. In December 2001, Mr Toma was moved to the Goulburn Correctional Centre. There he had an “A2” maximum security classification. That had been his classification since his incarceration in September 1996. There were still concerns about his mental health. He was transferred back to the Long Bay prison hospital, apparently for a psychiatric assessment. There, in January 2002, there was an incident of self harm. Records relating to that incident indicate that he was "angry at the system".
44.Proper understanding of the events of 2000 and 2001 lead to the conclusion that it was a time when Mr Toma was acutely vulnerable. He was distressed by a lack of family support, principally attributable to the distance between the prison at Lithgow and where his family lived in Sydney. His mental health was questionable and not being adequately addressed. His attempts to secure a more appropriate placement were rejected. Finally, he was placed at risk at Long Bay because of controversy caused by other inmates. When all of these circumstances are taken together, the incidents that occurred in 2001 have little significance to a contemporary assessment of Mr Toma’s risk of re-offending. Their principal relevance, to my mind, is the stark contrast they provide to the considerably more favourable reports about Mr Toma's conduct in the later years.
45.By 11 February 2004, Mr Toma had not been involved in any further violent incidents. But he retained his “A2” security classification and was perceived as a potential security risk. This is the inference that should be drawn from a caution letter sent to him by the Security Threat Group (“STG”) Intervention Program in February 2004. The letter indicated that he had been identified as potentially posing a threat to the safety of prison staff. The STG Task Force would continue to collect information about his conduct. If it involved adverse behaviour there would likely be a Task Force recommendation that he be formally included in the Security Threat Group program.
46.I specifically note that, despite this warning, and the monitoring activity to which it alludes, there is no evidence that any such recommendation was ever made. Nor is there any evidence that Mr Toma was ever included in the Security Threat Program. On the contrary, in May 2004 Mr Toma was reported to be receiving good work reports. He was described as polite with staff and followed the prison unit routine well. It was also noted that he needed to maintain contact with the prison psychologist and to be encouraged with his educational goals
47.Mrs Toma occasionally visited Mr Toma, until their divorce in 2004. In about July 2004, Mr Toma applied to be transferred to a prison in Victoria. His eldest brother, John, lived in Melbourne. So too, it would appear, did one of his younger brothers. The tendered records indicate that departmental officers contacted both brothers. Mr Toma’s younger brother is recorded as saying that both he and his brother, John, were willing and happy to support Mr Toma. They would provide him with accommodation on his release and help him find employment.
48.Mr Toma’s Case Plan records show that as early as January 2005 he had requested a review of his security classification, transfer to Junee Correctional Centre and that he wanted to attend English courses. On 11 January 2005, his case officer recommended both his transfer to Junee and reducing his classification to “B medium security”. Subsequent case notes record that his classification was reviewed in March 2005. Ultimately, after the psychological assessment referred to in paragraph 51, the Serious Offenders Review Council wrote to Mr Toma on 26 July 2005, informing him that the Commissioner had approved a reduction in his classification from “A2 maximum security” to “B medium security”. He retained that “B” classification until sometime in 2007, when it was further reduced to a “C1” classification.
49.In May 2005, Mr Toma was psychologically assessed. This appears to have been undertaken partly in response to a request from the Serious Offenders Review Council for a risk assessment in connection with a possible reduction in Mr Toma’s security classification. No doubt that request reflected the recommendation in the January 2005 Case Plan. The report appears also to have been partly in response to a recommendation by a Senior Psychologist (Ms McClements) who was an assessment manager within the Violent Offenders Therapeutic Program (“VOTP”).
50.In early February 2005, VOTP staff from the Metropolitan Special Programs Centre had conducted preliminary interviews with offenders at the Goulburn Correctional Centre, with a view to eliciting interest in participating in the program. The result of the interview with Mr Toma was summarised in a file note prepared by the VOTP assessment manager I referred to in the preceding paragraph. She recorded Mr Toma’s disinterest in participating in the VOTP. The reasons he gave were (i) poor literacy, and (ii) apprehensions about his safety (a professed fear that prison staff wanted to kill him). The assessment manager recommended psychological (and factual) assessment of his safety apprehensions (to rule out malingering). His mental health stability would have to be cleared before he would be considered for VOTP participation. He should also be subject to testing to assess his general recidivism risk, with a view to a program pathway being established based on the assessment.
51.The VOTP assessment manager’s recommendation was sent to the Serious Offenders Review Council. It may reasonably be assumed to have been influential in the Council’s request for the May 2005 psychological assessment of Mr Toma. At least parts of the May 2005 assessment report expressed concern about Mr Toma’s behaviour and about his prospects of re-offending. It alluded to reports that he had displayed little respect for staff or centre routine, that he broke rules and was argumentative and abusive. It noted that there had been no repetition since 2002 of the "voices" and paranoia suggestions that had been made in 2001. It also noted that Mr Toma had applied to become a full-time student in 2003 after attending several English classes. But his application had not been approved because of his poor work record. The report also referred to the February 2004 caution letter he had been sent by the Security Threat Group Task Force.
52.Perhaps the most important part of the 31 May 2005 psychologists’ report was its summary and explanation of Mr Toma’s relevant psychological testing. These tests included a Wide Range Achievement Test- Third Editionn and a Level of Service Inventory- Revised test (“LSI-R”). The latter risk assessment test is intended to provide an objective assessment of a person’s risk of re-offending and to highlight the areas of lifestyle, personal history, attitudes and behaviour that are most likely to contribute to that risk. The psychologist's interpretation of Mr Toma’s LSI-R result was that he fell within the “Moderate risk / needs group”. This interpretation apparently resulted from comparison of Mr Toma’s objective score with, what was described as a standardised sample of, people with a similar score. The report explained that 48% of persons with a similar score to that of Mr Toma had re-offended within the first year of their release from jail. As a consequence, Mr Toma’s objective score put him below the entry level for participation in the Violent Offenders Therapeutic Program.
53.The Minister’s contentions in the present proceedings attributed great significance to this May 2005 report. The Minister particularly emphasised the interpretation of the LSI-R risk assessment. The Minister said the report indicated that Mr Toma represented a risk of re-offending that was "serious" for the purposes of Direction 41, because he had been assessed in "the Moderate risk / needs group”. That assessment is, as I have indicated, an interpretation of objective test results and the standardised sample used to interpret those results. Its likely true significance is apt to require both a proper understanding of the test parameters, the method and the purpose of the interpretation. In the course of the evidence I invited the Minister’s representative to explain the real significance of that assessment and its relevance to the issues I had to determine. That invitation was not accepted, other than to assert that the expression meant what it said: that Mr Toma was in the “Moderate risk / needs group”. He therefore represented a risk of re-offending, which not only needed to be taken into account, but should be regarded as the primary, if not also the actually determinative, consideration.
54.The Minister’s contention appears to be a reasonable lay interpretation of the LSI-R risk assessment. But I am satisfied it is an unacceptable oversimplification. It relies on a test result that appears to have been contradicted by subsequent, and apparently more favourable, assessment. The May 2005 psychological report also places reliance on a behavioural history of Mr Toma, which was of doubtful contemporary relevance in May 2005, and which is quite different to the frequent favourable reports he received in the subsequent years. In these circumstances, I do not consider this four year old information provides a reliable basis for a conclusion that Mr Toma, in May 2010, presents with a material risk of re-offending in a way that poses a danger to the Australian community.
55.A better starting point for assessment of the significance of the May 2005 psychologist’s report, and its real utility in the present task, is to attempt to understand the context of the report, its result, and the subsequent course of events relating to Mr Toma. So far, as the context of the report is concerned, it is relevant to understand the additional commentary that it contained, by way of elaboration of the risk assessment interpretation. It dealt with two aspects of the risk – what it called dynamic and static risk. The major area of static risk for Mr Toma was his education and unemployment history. The report went on to note that although Mr. Toma's 2003 application to become a full-time student had been rejected, due to his poor work record, he could consider reapplying because he had subsequently been medically exempted from work. In addition, the report noted that he was unable to work in the corrective services industries at Goulburn Correctional Complex because of his medical condition. There was little alternative work available. Mr Toma had not been considered for a sweeper’s job because of his poor behaviour and attitude towards staff.
56.The report went on to comment that the major areas of dynamic risk for Mr Toma were his attitudes towards authority and his history of mental health issues. The report noted that the latter appeared to be stable. It went on to suggest that Mr Toma could also work with a psychologist to address his attitudes towards authority. It noted that he professed the importance of his religious commitment and stated that it had ‘woken him up’. He wanted a new life and stated that his religious commitment would stop him from ‘going back to a mess’.
57.The ultimate recommendations in this report were that Mr Toma recommence his English studies and have continued contact with psychological services, particularly to determine whether he had mental health issues that required intervention. A final recommendation emphasised the importance of obtaining some form of employment to allow him to develop his work skills before he was released.
58.I have already noted that after the May 2005 psychological assessment Mr Toma’s prison security classification was reduced by the SORC. That reduction, to a “B medium security” classification, is unambiguously set out in the 26 July 2005 letter the SORC sent to him. Unfortunately, and without explanation in any of the material tendered in these proceedings, there is good reason to doubt that subsequent reviews of Mr Toma’s prison history properly reflect an understanding of that fact.
59.For example, in a Review of Case Plan prepared at the Goulburn Correctional Centre between June and August 2006, his current guidelines for eligibility for possible reduction in the security classification included the date 4 September 2009. This suggests, on one possible reading, that he was being considered for reduction, in three years time, to a security classification he had already been granted. In that regard I note the August 2009 Mannus Correctional Centre report included a computer database printout with a history of Mr Toma’s prison security classifications. It records that Mr Toma’s “A2 maximum security” classification was not changed to a “B” classification until January 2007. The printout is simply wrong. Mr Toma was granted a “B” classification in July 2005.
60.English literacy was, and still is, something of a problem for Mr Toma, but in December 2005 he completed an English language skills course. Following that, his case notes indicate that in May 2006, his case officer recommended placement at Junee and that he complete further vocational training. It included a warning (no doubt related to the incidents that occurred in early 2006 to which I will later refer) that Mr Toma's behaviour would have to improve. The recommendation was adopted by his Case Management Committee. The General Manager of the Goulburn Correctional Centre requested Mr Toma be moved to Junee, and prepared for progression to a “C1” classification and accommodation in a minimum security environment. In practical terms these recommendations repeated those that had first been made in January 2005.
61.Although the psychological assessment on which the Minister places reliance was carried out in May 2005, there is little information in the evidence before me to explain the apparently inordinate delay in affecting Mr Toma’s transfer to Junee. The material does not include a case plan review for the intervening period. Furthermore, the detailed case note computer reports, although they appear sequential, have no entries whatsoever in the date sequence between 27 January 2004 and 26 October 2006. I do note however, that Mr Toma’s movement records reveal that in January 2006, he was transferred from the Goulburn Correctional Centre to the Metropolitan Special Programs Centre at Long Bay. There he spent a month, and returned to Goulburn in late February 2006. I note that the Metropolitan Special Programs Centre is the location from which VOTP staff had first interviewed Mr Toma, in February 2005, about his interest in participation. I have referred to that matter above.
62.Following his period at the Metropolitan Special Programs Centre, and the May 2006 recommendations, Mr Toma was transferred to the Junee Correctional Centre in August 2006.
63.The first Case Plan document prepared for Mr Toma at Junee appears to have been prepared in January and February 2007. It recommended his classification as a “C1” inmate. That assessment was rejected by the Operations Manager, apparently because Mr Toma would experience risks arising out of an association alert relating to another prisoner at Junee. The report noted that Mr Toma needed to complete a VOTP assessment. But it also noted that Mr Toma had been assessed in 2005 as unsuitable to participate in the VOTP. It queried that there appeared to be conflicting assessment reports. It is unclear to what this query related. Mr Toma’s May Case Plan reviews recorded that he had continued to remain in contact with the prison psychology section at Goulburn. The query might relate to the fact of that ongoing contact, and the lack of reported problems arising from it. Alternatively, it might relate to the lack of any adverse comment arising out of the time he had recently spent at the Metropolitan Special Programs Centre.
64.Amongst the documents put into evidence before this Tribunal, there is no further “Case Plan” from the Junee Centre, until one dated 14 August 2007. It contains a print out of Mr Toma’s security classification. It clearly records that Mr Toma was admitted to Junee with a “B medium security” classification that had been approved by the Serious Offenders Review Council on 16 September 2006. (Of course this indicated only his placement at Junee, his true security classification at Goulburn had been “B” since July 2005.) On page six, the report includes a case officer’s note, dated three months earlier in May 2007, that Mr Toma had applied for transfer for Victoria. The case officer specifically noted that until she received a response to that application she “would not address any suitable programs”. This latter note, and the absence of any meaningful details in the preceding January / February formal Case Plan, leaves me with the uncomfortable impression that little constructive work was done for or with Mr Toma in the first 12 months of his period at Junee. This was despite the explicitly recorded purposes for which his placement there had been recommended.
65.The case notes covering the period from November 2006 until February 2007 indicated Mr Toma was displaying consistent interest in trying to obtain employment. In January 2007 Mr Toma’s security classification was apparently downgraded from “B” to “C1”. Here again there is either an error, or at least confusion, in the computer records. The printout provided by the Mannus Correctional Centre records a reduction from “A2 maximum security” to “B medium” on 29 January 2007. The Junee Correctional Centre printout, to which I have referred above, records that the Serious Offenders Review Council approved a reduction from “B” to “C1” on 29 January 2007. If these apparently conflicting records can be reconciled it may be that the reconciliation relates to the classification of inmates at particular institutions, and that classification depends on both the available facilities and the risks posed either to, or by, other inmates at a particular facility. If that is the correct interpretation, then the printout records that Mr Toma was approved for classification as a “C1” prisoner at Silverwater on 29 January 2007. Why he was not actually placed at Silverwater does not appear from the material.
66.By February 2007, Mr Toma had completed a pre-employment program and was classified unrestricted “fit for work”. However, his ability to obtain employment was limited because of restrictions on his association with another inmate who was already employed where there was an available job. In early February 2007, that obstacle was overcome when that other inmate agreed he and Mr Toma could work in the same area. Thereafter Mr Toma began to work as a timber pallet maker in the Junee Correctional Centre. He was reported to be polite although "very annoying to staff” – reputedly because he was constantly “harassing them with trivial questions”. That could not have been a major criticism. In totality the reports for the period for early 2007 indicated that Mr Toma conformed well at Junee. Indeed a note of 1 May 2007 recorded that he was always polite and courteous. At this point I note that, by obtaining a transfer to Junee, overcoming the medical problems that had resulted in his being assessed as unfit for work, and securing employment, Mr Toma had substantially addressed major aspects of the concerns expressed in the May 2005 psychological assessment.
67.Despite the apparent absence of any particular program having been detailed in his formal Case Plan, the case notes do record that Mr Toma met his case officer in February and March 2007. But the notes of those meetings consist of a mere single line entry “met with Toma as per SORC requirements”. There is no further case note until early May 2007. The author of the February and March single line entries is the same person who wrote the May 2007 note to which I referred earlier. The perfunctory nature of these notes re-enforces my impression that little was being done at this time to actively assist Mr Toma, despite the active interest he was displaying.
68.It may be that part of the reason for an apparent lack of constructive activity was some doubt about Mr Toma’s mental health. The 31 May 2005 report, to which I referred earlier, had recommended that Mr Toma have a psychiatric assessment to “clarify whether he has mental health issues requiring intervention”. Almost two years later, in a report to SORC in March 2007, the case officer at the Junee Correctional Centre first requested that the assessment actually be done.
69.Mr Toma was again transferred to the Metropolitan Prison Complex at Long Bay in May 2007. He remained there for about eight days. Other records indicate that Mr Toma underwent psychological testing and psychiatric assessment at this time.
70.The actual May 2007 psychological assessment results and report have not been put into evidence. But there are two reports by SORC case officers in July and December 2007 before the Tribunal. They both refer to the fact of the May 2007 assessment having been done. But they also say that the results were not available. In the July 2007 report the Case Officer noted that Mr Toma was ineligible for VOTP participation, because of his 2005 assessment results. The same matter was noted in the December 2007 report.
71.The July and December 2007 SORC case officer reports suggest that the results of the May 2007 psychological testing were either delayed or misplaced, at least in some quarters. However there is no doubt that they were available and actually known, at least by some staff members. A case note dated 17 September 2007 notes “LSI-R conducted, raw score of 8, which places him in the low range”. That information is belated corroborated in entries in Mr Toma’s Case Plan for February 2009. (I pointedly note that this is almost 18 months later). The Case Plan contains an entry dated 16 January 2009 from the “Offender Services Manager”. It states “2007 LSI-R record a “low” level of re-risk of re-offending”. I note that this interpretation of Mr Toma’s LSI-R result is a reduction in Mr Toma’s risk assessment from “moderate” to “low”.
72.The same entry in the December 2009 Case Plan also notes that “pending policy change may provide opportunities for further progression”. This later aspect of the note is somewhat obscure. But a later note made in the same case plan by the Deputy Manager Classification reads “Low LSI-R may make him ineligible for VOTP?” To my mind, these notes really only make sense if they are understood to mean that, although Mr Toma had been referred to, and indeed applied for, the VOTP, his risk of re-offending was too low to warrant permitting him to participate. In that regard I note that there is a much later file note of a parole enquiry Mr Toma made on 24 November 2008. In the note of that inquiry to the Junee district office of the Department of Corrective Services, Mr Toma said he had done numerous programs and had "applied for VOTP but was told that he didn't need to do it". That account seems to be entirely consistent with the inferences available from the case note entries to which I just referred.
73.The May 2007 psychiatric assessment, to which I referred earlier, is the subject of a report dated 5 June 2007. It excludes mental illness and any developmental disorder. The limited history recorded in the report indicates that the psychiatrist was provided with the 2005 psychologists report and inferred that Mr Toma had a possible history of alcohol abuse or personality problems. It suggested that he have a follow up psychiatric interview. It also suggested that he may benefit from anti-psychotic medication. So far as the information before me reveals, Mr Toma has never had any alcohol or drug dependence issues. Indeed they had positively been excluded as a relevant consideration in Mr Toma’s Case Plan review in January 2005. Nothing in the information before me indicates that Mr Toma had any follow up psychiatric assessment.
74.It is relevant at this point to return to an aspect of the May 2005 psychologist’s report to which I referred earlier. The report includes a history suggesting that Mr Toma was of concern because of his attitudes towards staff. I specifically note that the May 2005 report included a comment that although Mr Toma should be seeking to obtain employment he had not been considered for a sweeper’s job (at the Goulburn Correctional Centre) because of his poor behaviour and attitudes to staff. I make that note because by June 2007 Mr Toma was the visits sweeper at the Junee Correctional Centre. He appears to have worked in that role for most of 2007 and in early 2008. In July, August, September and October he is recorded variously as diligent, having no problems with the unit or staff, and compliant with unit routine and staff directions.
75.In July 2007, Mr Toma made another application to be transferred to a Victorian prison. He was interviewed in connection with this application in August 2007. The interview summary recorded that English literacy was still a major problem for him. In describing his past prison attitudes he conceded that he had carried a knife in prison. That had been because he did not believe the system could protect him. However, over the years he had come to realise that meeting violence with violence didn't work and was paranoid. Now he said he "left it up to the Lord”. He was aware of the potential interest of the migration department and was unsure what would happen. He said that although he had two brothers who still lived in New Zealand, he wanted to live in Australia with his eldest brother John and be closer to his children.
76.Also, in August 2007, Mr Toma was recorded as a normal discipline inmate who presented with good unit and work reports. He presented no security or management risks. His formal case plan recorded his desire to transfer, and recommended his transfer, to the Long Bay (ie the Metropolitan) Special Programs Centre so that he could commence a VOTP course. The General Manager at Junee endorsed that recommendation. He noted that Mr Toma presented with positive unit and work reports and did not represent either a management or security risk whilst at Junee. This August 2007 transfer recommendation is consistent with the view that Mr Toma had been assessed as at least potentially eligible to particulate in the VOTP.
77.An inquiry of his brother, John, in September 2007 confirmed the availability of support for him in Victoria. It also confirmed the fact that John’s health made it difficult for him to travel more frequently to visit Mr Toma in Junee.
78.By the latter part of November / December 2007 some friction had obviously developed at Junee. It appears to have principally related to Mr Toma's complaints about smoking by other inmates. When that resulted in the prison staff enforcing the non-smoking policy, Mr Toma was recorded as having "become a consummate whinger regarding other inmates and their smoking habits”. That he should be criticised for requesting prison policy actually be enforced is sadly ironic. Then when he indicated to staff that he no longer wanted the non-smoking policy enforced (presumably because of hostility being directed to him by other inmates) he was told that it would be enforced nonetheless.
79.The state of affairs relating to Mr Toma by late December 2007 and the early part of 2008 is probably best assessed by having regard to a report of the Case Management Team that reviewed his position in early 2008. It is also instructive to note the Case Plan that was current at the time.
80.There is a background to these reports that needs to be taken into account. Some time in the latter part of 2007 he was suspended from his sweeper job because of allegations about inappropriate comments to, or about, female staff. The content of, and context in which, he made any such comments might have carried connotations different from that conveyed by the words themselves. In addition, one can well understand that they might have been regarded as unnecessarily intrusive. The difficulty is that there is no account of what Mr Toma is alleged to have said, or to whom he said it. In these proceedings he denied he had made any such comments. That is all he could do, in the absence of any specific accusation. I accept his denial for the reasons that follow.
81.There is an account of comments he made later to one female staff member, although these are not the comments that supposedly gave rise to original criticism. That account, on a literal reading of the words attributed to him, were nothing more than compliments about the officer's personal appearance and Mr Toma’s appreciation of the officer’s treatment of him. These comments might, from the perspective of the officer concerned, have been unwanted gratuities. Perhaps Mr Toma had no place venturing into the subject matter at all. But in comments of these kinds there is apt, depending on the context, to be room for differences in perceptions about what was intended, what was conveyed and what is appropriate in the circumstances. It is a large step, and one the disclosed circumstances do not justify my mind in taking, to conclude that these kinds of remarks can be extrapolated to inform the risk of Mr Toma engaging in further materially harmful conduct. There is absolutely no suggestion that any of these comments resulted in disciplinary action of any kind.
82.In support of the views I have just expressed I note that the February 2008 case management team assessment noted the absence of any internal charge or even a reprimand or caution relating to this matter. In the absence of any substantiating information, the assessment team proposed to write to the General Manager requesting a review of the “alert” that had been raised in the prison management records arising out of these comments. They did write in March 2008 and the Corrective Services records indicate that the alert subsequently became inactive.
83.Another part of the necessary background is one of Mr Toma’s breaches of prison discipline. On 23 February 2008 Mr Toma was assaulted, by one or more other inmates, in the prison kitchen area. This incident arose out of an argument. And although Mr Toma was disciplined for fighting, it is quite clear that one of the other inmates instigated the fighting. He punched Mr Toma in the face. It is perhaps unsurprising that Mr Toma retaliated if that, rather than merely protecting himself, is what he did. That he became involved in a fight seems to have been a considerable aberration in his more recent behaviour, as it had been recorded in the consistently favourable assessments in the case notes from January 2007 until April 2008.
84.The results of Mr Toma’s Case Management assessment review are set out in a report dated 18 March 2008. In yet another illustration of confusion about Mr Toma’s security classification, paragraph four of the notes records that the purpose of the interview that had been conducted with Mr Toma on 27 February 2008 was to discuss his reduction in security classification from “B” to “C1”. The report noted he was currently classified at Junee as a “B” category inmate. It is very difficult to understand this. As I have previously indicated, even the computer printouts provided with the Mannus Correctional Centre Report dated 14 August 2009 recite that Mr Toma had been classified as a “C1” prisoner in July 2007. I have also pointed out that that print out appears itself to be wrong, and that Mr Toma had apparently been approved for a “C1” classification in January 2007. Leaving aside any confusion in the classification records, the important point to note is that even after this incident the case management team recommended Mr Toma's (re)classification to a “C1 minimum security” category. That recommendation was approved in April 2008. What is more, it was approved after specific consideration of the details of the incident.
85.Another aspect of the March 2008 report was its comments about Mr Toma’s LSI-R assessment. It referred only to the May 2005 LSI-R test results and its “Moderate risk/ needs category” result for Mr Toma. It seems that the authors of the report were unaware of the further testing that had been carried out in 2007; unaware that it had resulted in Mr Toma having a “Low risk / needs” assessment; and unaware that he had a pending application to be accepted in the VOTP. There may be an explanation for the fact that none of these matters is referred to in the assessment team’s report. But whatever the explanation there seems to be a lack of communication.
86.By March 2008 Mr Toma was working as the Operations Managers sweeper at the Junee Correctional Centre. He was still awaiting the results of his application to transfer to Victoria. The delay was causing him some difficulty. He pressed his SORC assigned psychologist to let him know what was happening. She told him to be patient, that he had only lodged the application six months ago. He said, with some justification, that he had been waiting years to get his transfer to Victoria. It appears that the contrast between Mr Toma’s anxiety and his assigned psychologist’s institutionalised patience led to a break down in the relationship between them. He said he wanted to change psychologists. She said he couldn’t. Perhaps unsurprisingly he said he did not want to have any further meetings with her. The psychologist is the same person who made the May 2007 note to which I referred earlier. She made a subsequent note, in May 2008, it also recorded that Mr Toma had tried to arrange appointments with other psychologists. But he was told that this was “not how inmates are assigned”. She also noted that she had still not been told the result of the application Mr Toma had made in September 2007 for entry to the VOTP.
87.Clearly there was a breakdown in the relationship between Mr Toma and his SORC psychologist in early 2008. It appears to have occurred against the background of a degree of institutional inflexibility, a degree of institutional inertia and (in the absence of prompt and accurate communication about Mr Toma’s latest LSI-R results) reliance on inaccurate information. That Mr Toma should have been anxious, and indeed frustrated about his general lack of progress, particularly his transfer application, is to my mind, entirely understandable. In making that comment I do not intend to express personal criticism of those people involved in attending to his interests at the time. They would have had many other interests, demands and pressures they had to serve. But whatever the reasons, the circumstances revealed in the documents provided to me portray a situation where there was both a lack of effective action, a lack of motivation to take effective action and, in some quarters, ignorance of the true state of affairs relating to Mr Toma. Those matters, even if they are both understandable and excusable, cannot be allowed to distort a proper assessment of Mr Toma’s risk of re-offending.
88.Moving to another matter, there are two case notes in May and June 2008 relating to an incident at the Junee Correctional Centre. They record that Mr Toma had suffered facial injuries consistent with an assault. He steadfastly maintained he had fallen over. But when he was interviewed by a corrective services officer he supposedly admitted he wanted to stab another inmate. He was relocated to another unit in the Junee Centre. But no disciplinary proceedings were taken against him. He retained his job as a sweeper. His Case Plan review as at June 2008 was within weeks of the supposed incident. It does not even refer to it. Instead it noted that he was a normal discipline inmate who was well managed and making some progress at Junee. I do not accept that these comments would have been made if Mr Toma had in fact threatened to stab another inmate. On 3 September 2008 the SORC wrote to Mr Toma confirming his “C1 security” classification.
89.In the present proceedings Mr Toma denied that he had threatened to stab anyone. He said he fell and hit his face on a trolley. He officers who saw his face thought he had been hit by another inmate. They did not believe his explanation. They thought he was trying to avoid implicating the inmate responsible. They put pressure on them to tell them who it was. They did that by keeping him in his cell. To do that they had to have an excuse. Saying it threatened to stab "another inmate" provided the excuse.
90.I do not accept the case note reports of this incident are reliable. It is, to my mind, not credible that Mr Toma would have refused to tell the officers who had hit him, yet the same time was prepared to tell them who he wanted to stab. Still less do I accept that he simply told them he wanted to stab "another inmate" - which is the only detail actually recorded in the case notes.
91.I accept Mr Toma’s explanation that his facial injury looked like he had been attacked. I accept that the correctional services personnel believed he had been assaulted. I accept they did not believe his denials. I also accept that they would have been most concerned, both for Mr Toma’s own safety and for the sake of good discipline in the prison, to find the culprit. I cannot, and do not, make additional finding that the stabbing threat attributed to Mr Toma in these notes is fabricated. But I do find that these notes are not reliable. I do not rely on them, partly for the reasons set out above.
92.I also do not rely on them for reasons that Mr Toma pointed out. One note is dated 22 May 2008. The other note is dated 22 June 2008. Both clearly relate to the same incident. The first note records that the events happened on 17 May 2008. Mr Toma was taken to one prison unit, found injured shortly afterwards, and then immediately taken back to his original unit. The second note, by way of contrast, reports the events happened on 18 May 2008. Moreover, it says that Mr Toma was not immediately taken back to his original unit. Instead he was kept in the new unit, where the incident happened, for two days and only then returned to his original unit. Both notes cannot be correct in the details they record. I do not rely on either of them. There is no other direct account of these events. I do not accept that Mr Toma made the threat attributed to him.
93.In mid-December 2008 Mr Toma’s security classification was further reduced to “C2”. This no doubt followed the recommendations contained in his December 2008 case management plan. In that plan the SORC psychologist to whom I have referred above noted that she was no longer having regular contact with Mr Toma. I would infer that the conflict between them remained. I would also infer that Mr Toma, at least from the perspective of his self-interest, had some reason to have lost confidence in the utility of further dealings with her. (I explicitly refrain from expressing an opinion as to whether Mr Toma’s reasons constituted sufficient justification in all the circumstances. . However, I note that the general manager recorded that Mr Toma presented with a positive attitude, complied with this case plan and presented no management risk. It was noted that although he had applied to participate in the VOTP (an application which, I emphasise, had been made in September 2007) he was still waiting for a response to his application.
94.At the time of the December 2008 case plan review Mr Toma was still working as the operations managers sweeper at Junee. I would infer, as the name "sweeper" suggests, that this position provided Mr Toma with a degree of freedom of movement, and some degree of status within the prison population. I note also, by inference from the comments contained in the May 2005 psychologists report, that it was a position that could only be earned by both good behaviour and proper attitudes to the prison staff. I finally note that Mr Toma retained the position of operations managers sweeper until his transfer to the Mannus Correctional Centre.
95.There is relatively little information about Mr Toma’s activities and behaviour during 2009. He was involved in a fighting incident in late February 2009. I will come back to that matter later in these reasons.
96.In April 2009 Mr Toma was transferred to the Mannus Correctional Centre. Shortly afterwards he took part in a risk management consultation. The notes of that consultation consist substantially of a short summary of the events relating to Mr Toma's conviction and sentence. The opinion section of the report is exclusively based on the 31 May 2005 psychologist report, to which I have referred earlier in these reasons. The opinion went on to note that although Mr Toma had previously been found ineligible for VOTP, he might now be eligible for the moderate intensity VOTP. The opinion went on to cite, and explicitly agree with the comment in the 2005 report that the major areas of dynamic risk for Mr Toma appear to be his “attitude towards authority and his history of mental health." If I may say so, the author of this opinion appears not to have been sufficiently apprised of a number of important matters. These included (i) the substantial resolution of the previously expressed concerns about Mr Toma’s mental health, (ii) the substantial improvement, well documented in the case notes, in his attitudes to authority (iii) the psychiatric assessment that had been carried out in 2007 (iv) the LSI-R assessment that had been carried out in 2007, (v) the “low risk / needs” result of that assessment, and (vi) the VOTP application that Mr Toma had made in September 2007. However, I note that the comment Mr Toma "may now be eligible for the moderate intensity VOTP” reinforces the views I earlier expressed - namely the likelihood that (i) Mr Toma had in fact been told previously that he was not eligible for, and did not need to undertake, the VOTP and (ii) that there had been an intervening change of policy which extended the potential VOTP eligibility.
97.In May 2009, Mr Toma was yet again transferred to the Metropolitan Special Programs Centre for assessment. He spent about a fortnight there. In June 2009 he was recommended to participate in a number of programs. One of them was an alcohol and drug addiction program which he neither needed nor was eligible for, because he had no relevant history. That matter was corrected at the end of June 2009 and in early July 2009 he commenced a Managing Emotions course. He completed that course in August 2009. He was recorded to have attended each session to have tried hard and participated well. However, he was noted to have language and English writing difficulties that, it was apprehended, would hamper his participation in the VOTP course.
98.On 8 July 2009, one year and 10 months after he had applied, Mr Toma was finally notified of his acceptance into the VOTP. However, the acceptance letter indicated that he would be "contacted when a space becomes available". It is now May 2010. He is still waiting.
99.In April 2009, Mr Toma had started work in the Mannus kitchen as a cook. Within a few weeks he had been moved down to the position of sweeper, because of his lack of kitchen skills. But by mid August 2009 he was described as having improved his skills. He worked well, was able to prepare quality sandwiches and salads, and was an asset in the kitchen.
100.On 9 November 2009, Mr Toma was approved for work in the timber processing shed at the Mannus correctional complex.
101.This history of Mr Toma’s prison circumstances, though long, is nevertheless abbreviated. In drawing conclusions from an abbreviated history, a good deal of care is required. But it is useful to consider something of the structure of the process of supervision and reporting that is evident in the many documents to which I have referred. It is evident from the Case Plan documents that they were the subject of a great deal of input from a variety of sources within the prison system. These included the prison Managers of (i) Security, (ii) Classification and Placement, and (iii) Services and Programs. It also included the education officer, the psychologist, the welfare officer, the case officer, the Case Management Team, the Prison Operations Manager and the Prison General Manager. This reflected a procedure for comprehensive input from a range of informed people who were able to draw on their observations of Mr Toma from his every day activities over the whole period of time since his last case plan review. These reports provide the best and most comprehensive account of Mr Toma’s behaviour and attitudes and the impression he gave not only to those best able to observe him, but also those with the most direct responsibility for his welfare. Their views have, since the early part of 2005, consistently been that he has been overwhelmingly a compliant and well behaved prisoner. This is particularly true of his behaviour and repute since mid 2006. It is evidenced both by the reports, by his employment as a sweeper and by the reductions in his security classification. It is particularly important to note that the behavioural complaints noted in the history recited in the May 2005 psychological assessment neither, at that time, or at any time subsequently, accurately reflect his conduct. They certainly did not do so by the time of his transfer to Junee in August 2006.
Refusal of parole
102.The first date when Mr Toma could have been granted parole was 4 March 2010. But the New South Wales Parole Authority refused his application on 5 February 2010. On 26 February 2010, the Parole Authority refused Mr Toma’s request for a review of the parole decision. Parole was refused for the reason that the Authority was not satisfied Mr Toma’s release on parole was in the public interest. The considerations to which it had regard were (i) the need for him to participate in a VOTP program, (ii) the need for structured post release plans (iii) the number of his offences in custody (iv) the need for him to participate in an external leave program and (v) SORC advice that it was not appropriate for Mr Toma to be considered for release on parole.
103.The Parole Authority’s decision appears in fact to be based on information contained in a NSW Probation and Parole Service Pre Release Report dated 21 January 2010. This report listed Mr Toma’s prison discipline record, part of which I have described above and which I will further discuss below. It added to that record a reference to the case notes in May 2008, to which I have referred and rejected as unreliable in paragraph 90 above. It also noted his current “C2 security” classification. The Report noted that with a “C2” classification, Mr Toma was not eligible to participate in a pre-release program.
104.The January 2010 Pre Release Report included various attachments. Presumably all of these were intended to reflect an up to date and accurate assessment of Mr Toma’s position as at January 2010. Only one of them was. I will list the attachments in chronological order. They were (i) the McClements file note that I referred to in paragraph 50 above, and which is a summary of the initial enquiry made in early 2005 to assess Mr Toma’s interest in undertaking the VOTP, (ii) the May 2005 psychological report (it is described as a June 2005 report) (iii) the psychiatric report of 5 June 2007, (iv) the 8 July 2009 letter advising Mr Toma of his VOTP acceptance. The first document was no longer relevant because it had been overtaken by the VOTP assessment that Mr Toma undertook in May that year. The second document was no longer relevant because it was overtaken by his subsequent psychiatric clearance, his vastly improved behaviour, his sustained subsequent employment and his subsequent VOTP assessment, application and acceptance. Moreover, the LSI-R test results on which it was based were no longer accurate. They had not been accurate since September 2007. The third document was, on its face, of very doubtful relevance. It refrained from any specific definite diagnosis, although it excluded psychotic illness. It recommended further psychiatric assessment follow up. None occurred. At least none is referred to in the Pre Release Report, and it clearly should have been, if it had occurred.
105.More disturbing than the inclusion of this dated and inaccurate material, was the interpretation that was placed on it. The Pre Release report opined that Mr Toma had been reluctant to participate in the VOTP program. It criticised him for taking little effective interest in education or in undertaking the VOTP course. In consecutive paragraphs, which it linked by the word “consequently”, it proceeded from the recommendations in the May 2005 psychologists report to Mr Toma’s acceptance into the VOTP. The context implies that Mr Toma had been required to participate in the VOTP, rather than that he had displayed any motivation to undertake it. This criticism of his motivation is made very explicit in the following paragraphs. There the report depicts Mr Toma as displaying enthusiasm for learning, but failing in his motivation.
106.The second of these criticisms I do not accept as justified. The report cites Mr Toma’s removal from unspecified “education classes” for non attendance in September and November 2009. Then with a degree of condescension introduced by the word “nevertheless” it lists a range of certificates Mr Toma had obtained. But it lists them out of order. If they had been listed in order they would have included courses in January, August, and November 2009. To that list should also be added the “Managing Emotions” course he completed in August 2009 that is referred to on the final page of the report. This sequence of events does not relevantly demonstrate a lack of motivation. That criticism is, to my mind, quite contradicted by the actual case note reports of Mr Toma’s attendance and participation in the English skills course he completed in August 2009.
107.Of much greater concern is the entirely wrong implication generated by linking Mr Toma’s belated acceptance into the VOTP program with Ms McClements early 2005 file note referring to Mr Toma as “unsuitable” to participate in the VOTP. There can be no doubt that this was the impression deliberately conveyed by the author of the Pre Release Report. That there cannot be any doubt is made abundantly clear by what appears later. On the last page of the report, the author describes Mr Toma as having “thwarted” attempts by staff to have him undertake the VOTP program. It said attempts to have him improve his English had met with minimal success “largely due to his failure to attend classes”. Then, without explanation of the circumstances, the report notes that Mr Toma was assessed in July 2009 as suitable to participate in the VOTP program.
108.The impression that Mr Toma had “thwarted” attempts to have him undertake the VOTP is, to my mind, without any foundation. It is wrong on several grounds. First, what Ms McClements did in early 2005 was not to try to get Mr Toma to undertake the VOTP. What she was trying to do was elicit his interest in participating. Even if he had been interested at that time, there is no reason to suspect that any assessment he had undertaken in early 2005 would have been any different from the LSI-R test result he obtained in May 2005. According to that result he was simply not even eligible to participate in the VOTP, because his risk of re-offending was too low.
109.At that fundamental level the Pre Release Report, and the criticism it makes of Mr Toma appears misconceived. How he could possibly be criticised for “thwarting” staff attempts to have him participate in a program for which his actual risk assessment scores disqualified him is difficult to understand.
134.Although the Minister tended to accept Mr Toma’s account of these incidents (in 2008 & 2009) where he portrayed himself as the retaliating victim, he also contended that they nevertheless retained some significance. They had some resonance with the fatal retaliation that occurred in September 1996. They tended to indicate that Mr Toma lacked the capacity to just walk away, and avoid needless and potentially dangerous confrontation.
135.There is some force in the Minister’s contention. But it is not great. If one accepts that Mr Toma was first attacked in each of 2008 and 2009 incidents, the Minister’s hypothesis directing criticism towards Mr Toma’s response is only justified, as it seems to me, if one can conclude that his response was disproportionate or unreasonable. Furthermore, it is necessary to take into account the prison environment. I am very disinclined to accept the proposition that it is realistic to expect a prisoner who has been aggressively attacked by another inmate (and in the case of the February 2008 incident, several other inmates) can just simply maintain a completely passive response. At one stage of his cross examination in these proceedings this was the basic effect of a proposition that was put to Mr Toma. If this was intended to convey anything more than the generality that prisoner, no more than anyone else, can take upon themselves the task of retribution, it is a sound enough proposition. But if it was meant to convey that in the particular circumstances of these two incidents Mr Toma could and should simply have “walked away”, it is not a proposition that provides a realistic criterion for assessing Mr Toma’s risk of re-offending.
136.My conclusion is that Mr Toma’s prison discipline record does not, when properly understood, and evaluated against the background of his considerable behavioural, educational, mental health and English language improvements, convey any real risk of re-offending on his release. He has 14 breaches of prison discipline. There have been only four in the last seven years. One of those was five years ago and was an offence of threatening language. Thus, there have been three breaches of prison discipline in the last four years. In two of them Mr Toma was the victim of an assault and retaliated (or defended himself, depending on how one characterises a fight). The reality is that on one occasion in the last four years Mr Toma has initiated violence. That was when he was a protected prisoner, concerned for his own safety and assaulted his cell mate for the purpose of getting a “one out” cell. The assault did not involve any significant injury.
Fr El-Bakhoumi’s letter
137.Very Reverend Fr Tadros El-Bakhoumi OAM is a senior priest of the Coptic Orthodox Church, New South Wales. Between 1986 and 2003 he was the Church's official spokesman in its dealings with federal, state and local government. Since 1986 he has had a particular responsibility for the church in relation to immigration matters affecting the members of the church community
138.Fr El-Bakhoumi wrote a reference letter for Mr Toma in response to the April 2008 notice of intention to cancel Mr Toma’s visa. In the letter Fr El-Bakhoumi said he had visited Mr Toma regularly [about every four to six weeks] since May 2003. He said that since he had been visiting Mr Toma and offering spiritual guidance, Mr Toma had changed his life. He had requested to be rebaptised and asked for a Bible and prayer books so that he could improve his spiritual life. He had become a regular confessional penitent. He encouraged a number of other inmates to embrace, or renew their connection with, the Orthodox Christian faith.
139.Fr El-Bakhoumi’s reference to Mr Toma’s repentance appears to be more of a general description of his renewed faithfulness rather than explicit expression of regret for the 1996 murder. This is because Fr El-Bakhoumi also attributes to Mr Toma an assertion that his brother-in-law’s death at his hand was something that happened in self defence and without any criminal intention on his part.
140.Fr EL-Bakhoumi was very confident, from his observations of, and interaction with, Mr Toma over a period of years that, after his release from jail he would be a good citizen.
141.The Minister did not challenge the views Fr El-Bakhoumi expressed, but was very sceptical that Mr Toma’s religious convictions were a material consideration. In particular, the Minister’s representative cross examined Mr Toma to the effect that his religious convictions had always been important to him. Nevertheless the results of his behaviour, the 1996 murder, and his prison discipline breaches, are patent.
142.The generality of this point is sound. But it only takes one back to a careful evaluation of the circumstances of those matters, and careful examination of Mr Toma’s more recent behavioural history, particularly as reflected in the prison records and assessments since 2005. I have reviewed the sentencing judge’s assessment of the circumstances of the 1996 murder, and made my own assessment in the light of the available information. I agree with the sentencing judge’s assessment that the circumstances of the 1996 murder were very situationally specific. They were a combination of prolonged family resentment, and reaction to his brother-in-law’s abusive and provocative aggression. My assessment of Mr Toma’s prison history is that, since at least mid 2005, he has been an essentially compliant and co-operative prisoner. In the words of the assessment in his January 2009 Case Plan he "presented with a positive attitude and complies with his close case plan (and was a) low management risk".
143.I recognise the real practical differences between institutionalised custody and the potentially confronting exigencies of ordinary community life. I recognise also that Mr Toma, upon his release into the community would have to cope with the difficulties of the destruction of his family life and his lack of employment history. He would also, no doubt, encounter difficulties in coping with the formalities and discipline of any kind of structured release program (assuming that was even available to him). These considerations give rise to understandable apprehension about the success Mr Toma will have in re-establishing himself in the community. But Mr Toma has, in reality, met similar challenges in the past. He emigrated to New Zealand in 1992. That immigration involved dramatic changes of hemisphere, culture and language. He coped. He did so lawfully. In 1995 he moved to Australia. This too was a substantial change. He coped. He was employed. He behaved lawfully. There is good reason to believe that, but for the peculiarity of the family controversy, and his brother-in-law's aggression, the totality of his behaviour as a resident would have been both lawful and without risk to the Australian community. I consider it is both reasonable and proper to conclude that after his release from prison the overwhelming probability is that his future residence in the Australian community will be without material risk of re-offending.
The period and quality of Australian residence
144.I move now to consider the second and third of the primary considerations: the period and quality of Mr Toma’s Australian residence. He came to Australia in August 1995, with his wife of four years, and their two year old son. He was then almost 29. His daughter was born here in May 1996.
145.Mr and Mrs Toma lived, apparently at Fairfield, for the 13 months before the September 1996 murder. He worked in various jobs. He was incarcerated immediately after the murder and has been in prison ever since. He was then 30 years of age, and is now 44.
146.As a consequence of his incarceration only one of his 15 years in Australia has been spent living in the community. The first three years of his incarceration was at the Long Bay Jail. His then wife visited him very regularly. So too did a range of friends, some of his brothers, nieces and nephews. Since December 1999, Mr Toma has been mostly incarcerated in regional centres (Lithgow, Goulburn, Junee and Mannus). His wife, and friends, and very occasionally two of his brothers, continued to visit him, reasonably regularly when he was at Lithgow. But after his transfer to Goulburn, the number of visits dropped.
147.If the prison visitor records put in evidence are reliable, his only visitors in 2002 were very occasional, and they were friends. In 2003 he had five, widely spaced, visits. His wife and a couple of apparently steadfast friends were the most frequent visitors. His brothers came once. In 2004 he saw Fr El Bakhoumi once. His only other visitor was a friend who brought the children for a visit in December 2004. He had only one visitor in 2005, his former wife. He had no visitors at either Goulburn or Junee in 2006, although two of his brothers, his cousins and friends did visit earlier in the year when he spent a short period at the Long Bay prison complex. His brother John visited him, with his family, once in 2007. His only other visits were from two friends. John visited again with his family, and Mr Toma’s two children, in early 2008. John and his wife visited again in August 2008. John and his wife visited again in mid 2009, after his transfer from Junee to Mannus.
148.Direction 41 explains that the primary relevance of the present considerations are (i) the extent to which a person spent their formative years in Australia, (ii) the period of time the person was resident before engaging in the offending conduct. The common theme of both of these considerations is the likely extent and significance of the person’s ties to Australia. Where the person spent a substantial part of their development minority in Australia they will have a degree of dependent familiarity. Similarly, the Australian community may consider it appropriate to accept a comparatively greater degree of risk in relation to the behaviour of people whose character and behaviour has been substantially influenced by the community’s mores and culture. Conversely, whilst those same concepts do not apply to a long time adult resident, the length of that person’s lawful residence will both increase the likelihood of their having substantial community ties, and provide a potentially informative background against which to assess the likelihood of their re-offending.
149.These primary considerations are difficult to apply in Mr Toma’s favour. He came to Australia well into his twenties. He lived here for little more than a year before his offence. He has had little opportunity to establish non familial community ties. Conversely, his period of incarceration has made those ties both more important and more vulnerable. His wife divorced him in 2004, and has had no meaningful contact with him since. Without his former wife’s co-operation he sees his children only when his brother John visits, typically with his family. John is only an occasional visitor, but he has been faithful and persistent.
150.Mr Toma says that apart from his brother, John, and his family, and his own children, he has 50 to 60 cousins living in Australia. But the evidence does not include any detail to permit an assessment of the nature any relationship he may have with them or the extent to which they have any interest (using that expression in its most inclusive sense) in his continued residence in Australia.
Mr Toma’s children
151.I move now to consider the fourth of the mandatory primary considerations. They are expressed in Direction 41 under the heading Relevant International Obligations. In the circumstances of the present case, the relevant considerations are the best interests of Mr Toma’s two children.
152.Mr Toma’s son has just turned 17. He was three and a half when Mr Toma began his sentence in September 1996. Mr Toma’s daughter has just turned 14. The evidence does not reveal that Mr Toma has played any significant part in the children’s upbringing. It is unlikely that he has. However, I do note that Mrs Toma was a regular visitor for many years, and until the end of 2003. By that time the children would have been 10 and seven years of age, respectively. It is likely that Mrs Toma would have fostered the children’s awareness of Mr Toma’s significance as their father, and cultivated their affection for him. They did visit him occasionally, but rarely since 2004.
153.The absence of communication and contact between Mr Toma and the children precludes any specific evidentiary basis for opining that their interests would be significantly affected by the cancellation of his visa and his return to New Zealand. There is no evidence of his financial contribution to their welfare, or how it would be affected by his likely residence in New Zealand. Nor is there any evidence of his ability to provide physical and paternal support to them, or how that would be either diminished or enhanced by his place of residence.
154.Since November 2008, Mr Toma’s son has left his mother’s home and lived with Mr Toma’s eldest brother, John, in Melbourne. Mr Toma said he did not get on with his stepfather. That was the reason for him moving to live with John. That is a matter that highlights the potential importance to Mr Toma’s son (as it is to Mr Toma) of having a sound father-son relationship in the future. That relationship would clearly be best fostered if Mr Toma was allowed to remain in Australia and live with, or at least near, his brother in Melbourne. That is what he proposes to do. It is consistent with the applications he has made since about 2004, to be transferred to a Victorian prison.
155.But it does not seem very likely, if the views expressed in the January 2010 Pre Release report remain unchanged, that Mr Toma will be released from prison before Mr Toma’s son attains his majority. That might not diminish, for them, the importance of their relationship nor that of Mr Toma’s physical proximity in order to foster it. It does affect the emphasis that can properly be given to this consideration.
156.If Mr Toma was released, and went to Victoria, there is no evidentiary basis to find that contact with his daughter would be much more regular than it is at present. Whilst his former wife discourages his contact with their daughter, as she has done since the 2004 divorce, he has a very limited ability to foster it. The situation might improve if he was employed, and perhaps able to travel, or to fund her travel, more readily. But the more likely reality is that Mr Toma would have relatively little ability, if he went to live in Victoria, to make tangible contributions to his daughter’s welfare and development.
157.All that having been said, the children have signed a note expressing their support for Mr Toma, and their wish that he be allowed to remain in Australia. This note has been written by Mr Toma’s son, but is signed by both children. It most specifically expresses Mr Toma’s son’s “dream” to be able to live with him. But it conveys both of their preferences that he remain in Australia.
158.Both children have spent, in practical reality, all of their formative years in Australia. I would not regard either of the children as likely to go to live with Mr Toma in New Zealand. However, at least in Mr Toma’s son’s case, he would be free to do so if he chose to, in order to foster his relationship with his father.
Personal circumstances & family ties
159.Mr Toma’s personal circumstances, including his family ties are also relevant considerations, but Direction 41 precludes these matters from being regarded as primary considerations.
160.Mr Toma has, by the standards of normality of an Australian upbringing, had an unfortunate life. His misfortune started when he was very young. His father died when he was five. His mother left him and his six siblings. He was brought up by his 15 year old eldest brother, John. Mr Toma had seven years schooling and is literate in Arabic. After he left school he principally worked as a blacksmith but he had many different jobs. In 1986, when he was aged about 20, he left Iraq. He says he left because of Iraqi prejudice against the Assyrian Christian community. He made his way to a refugee camp in Iran. He lived in the refugee camp from 1986 until about 1992. It was there he met his former wife.
161.Mr Toma’s brother John is the only one of his siblings who currently lives in Australia, or with whom he has any contact. His sister lives in Iraq, as does his mother. His other older brother lives in Canada. He has two younger brothers, who live in New Zealand. One of these brothers lived in Victoria for a time, up until about 2006. Whilst he was living in Australia he did occasionally visit Mr Toma in prison. He offered to support him in connection with his transfer to Victoria, and at least at that time (in about 2004) he indicated his willingness to support Mr Toma after his release from prison.
162.Mr Toma says he has not heard from his brothers in New Zealand for some time. He does not believe they would provide him with any support if he was required to return. His only real family tie is with his eldest brother, John. John is like a father to him. And I would infer that John displays that kind of paternal commitment and support for Mr Toma. It is evident in his commitment to make the long journey to visit Mr Toma in jail, often bringing his wife, other family members and, occasionally, Mr Toma’s children.
163.The Minister says that the real likelihood is that Mr Toma would be supported in New Zealand by his brothers there, or would at least be able to re-establish a supportive relationship with them. The Minister points out that one of his brother’s lived in Australia for a time and was then positively supportive of Mr Toma. The Minister says that this brother’s willingness to assist Mr Toma is unlikely to have changed. Implicitly, the Minister’s contention is that Mr Toma’s position would not be markedly different whether he lived in Melbourne near his brother, John, or in New Zealand near his other brothers.
164.There is both general force and unverifiable optimism about the Minister’s contention. More importantly, it would invite the present decision to be made on the basis that gave greater weight to what might be Mr Toma’s situation in New Zealand, than to the reality of the hardship he would suffer by being distant from his brother John, and John’s family. To my mind, the totality of the evidence points very clearly to the importance to Mr Toma of his relationship with John, and of John’s commitment to his welfare. Equally clearly, as is evidenced by the lack of frequency of John’s visits, and Mr Toma’s several attempts to be transferred to Victoria, over the years, their physical separation is likely to be a major inhibitor to the redevelopment of their relationship. And that is a very significant matter for Mr Toma. It is a significant matter, because his goal of moving to Victoria, to be closer to John, has been the dominant and repeated stated desire reflected in the many prison records I have considered. I find that if Mr Toma was required to return to New Zealand that would deprive him of the chance to achieve a goal that has been motivating him for years, being close to his father figure brother and looking forward to his support in re-establishing his post release life, both emotionally and materially.
165.The substance of my finding in the preceding paragraph is that Mr Toma’s ties with Australia are, substantially greater than they are with New Zealand. They are greater for three main reasons. First, the distinctive nature of Mr Toma’s bond with his eldest brother, and the extent to which, by his conduct over the years, John has obviously held out to Mr Toma his willingness to support him in a very substantial way. Secondly, I would infer from the comparative regularity of John’s visits, and the fact that he often was accompanied by his wife and other relatives, that there is something of a receptive and supportive family environment available to Mr Toma in Victoria. Thirdly, Mr Toma’s two children live in Australia. And they have both expressed a desire to either live with him (in the case of his son) or to have contact with him (in the case of his daughter). Whilst it is true that either of the children could visit him in New Zealand if they chose (and had the means), he could not visit, nor share any part of their lives in Australia.
Age, hardship, health and inability to advocate
166.The permissibly relevant other considerations addressed in Direction 41 includes Mr Toma’s age, his general state of health, and his ability to obtain support, particularly if he was returned to New Zealand. They also include the adequacy of his ability to advocate on his own behalf, and his capacity to contribute meaningfully to the Australian community.
167.Some of these considerations have a potential bearing on the correct or preferable decision in the present case. Mr Toma’s age and health are mostly equivocal considerations. He is young and healthy enough to be able to adapt to the stresses and challenges of re-establishing himself in New Zealand. But his past tendency to paranoia, exacerbated as it was in 2001 by the lack of family and emotional support, suggest some risk potential association with his return to New Zealand. That potential is greater because of his long period away from New Zealand and his lack of familiarity with the procedures, programs and organisations that might be able to facilitate his progress. This potential is a marginal consideration against the cancellation of his visa, though it must defer to proper evaluation of the primary considerations.
168.The question of what re-establishment assistance would be available to Mr Toma in New Zealand is a permissibly relevant consideration for another reason. The January 2010 Pre Release Report I discussed in paragraph 103 above alluded to a number of rehabilitative and structured release programs that would ordinarily be available to prisoners who had completed their sentences or were granted parole. It is evident that some of those programs, particularly pre-release work placement and supervised or day leave, are simply not available to prisoners unless they have the required security classification. Conversely, prisoners who have their visas cancelled cannot qualify for the required security classification. These considerations lead to the result that a decision to cancel a visa can work a very considerable hardship in depriving a prisoner of the opportunity to participate in important rehabilitation programs.
169.In these proceedings, I asked for the Minister’s assistance in providing information about what programs or assistance might be available to Mr Toma on his return to New Zealand. I was provided with no information in response to my request for assistance. I apprehend that was because the point arose too late in the proceedings and the information that might have been helpful was not readily available. In the circumstances I do not convey any criticism of the course of events that occurred. However, I want to make it very plain that I consider paragraph 11(3)(e)(ii) of Direction 41 to make this matter a consideration that should be taken into account. And if the consequence of a visa cancellation decision is to deprive a prisoner of the opportunity to participate in the full range of rehabilitative programs that are usually available in Australian corrective services institutions, then it is a matter that has the potential to be of considerable importance. In any future matters this Tribunal should not be left in a situation where the Minister’s representatives are unable to provide it with meaningful information on what is a plainly relevant matter.
170.A different, but related consideration is the extent to which the former holder of the cancelled visa might be able to access any available programs in their new location. This is a matter of concern with a person such as Mr Toma. Time after time, in the correctional services records, there was concern expressed about his English literacy. In the last English skills course he did, at Mannus Correctional Centre in August 2009, he was described as a motivated oral participant, but that he would likely struggle with the VOPT course because of its greater demands for English writing and reading. This concern matches my assessment of Mr Toma. He participated in the proceedings before me, including cross examination, without the need for running translation. During the course of the formal hearing he used the assistance of an interpreter occasionally, apparently only to clarify particular concepts or questions. Subsequently, he participated unaided, but effectively, in a telephone hearing in which he was able to read and convey an understanding of short simple English paragraphs. But I have the distinct impression that Mr Toma would struggle with more demanding English writing tasks, such as completing application forms. Again, there is some potential for hardship for him if he was returned to New Zealand and provided with less support than he is likely to have available to him in Victoria from his son, his brother and his brother’s family.
171.However, there is a much more significant aspect of this matter. The difficulty that Mr Toma has in effectively participating in these proceedings and advocating his own cause. This difficulty was evident at two levels. The first level was Mr Toma’s inability to obtain any representation for the hearing. At two earlier directions hearings he was represented by a solicitor, but that person did not have any specific instructions from Mr Toma, because of the difficulty contacting him in prison. Subsequently, another firm of Sydney solicitors filed a Statement of Facts and Contentions on Mr Toma’s behalf. But it did not address the detail of Mr Toma’s prison history, I suspect because the solicitors did not have it.
172.At the hearing of these proceedings the Minister tendered a folder that contained the principally relevant parts of Mr Toma’s prison records. The actions of the Ministers’ representatives, in obtaining and providing this material, were of great assistance. But the material would have been of much greater assistance if it had been assembled with some sense of structure or at least chronological sequence. It was not. The lack of obvious order, and the confusing chronological sequence, made it most difficult to use. It made it an unnecessarily time consuming task to understand the relationship between various documents and events. Grateful as I am that this material was provided, I point out that decision makers have a positive and substantive obligation to assist the Tribunal in both the efficiency of its proceedings and the accurate comprehension of the material they provide. That task is not performed simply by providing a folder with numbered pages, but no other discernible system of organisation.
173.The real problem with this material is that Mr Toma had no hope of comprehending it. Although a copy of it had been sent to him in prison, he did not even bring it with him to the proceedings. He was given another copy, and the Minister’s representatives assisted him and the Tribunal with an interpretative explanation of some of its contents. But this was no substitute for a reasonable opportunity to study the material and really understand what it conveyed. In reality Mr Toma came to these proceedings utterly unprepared, unrepresented and without the considerable literacy skills that were required to use the material effectively and put his case to the Tribunal.
174.The most fundamentally troubling aspect of all of this is that, as I have understood it, the material conveys adverse opinions about Mr Toma’s prison behaviour, approach to rehabilitation and risks of re-offending that are without foundation. More robustly expressed, the information conveys to me that Mr Toma’s behaviour and prospects have been assessed in an apparently unfair manner, not based on the most up to date information, and expressed in opinions that do not reflect the reality of what is recorded in the documents I have addressed.
175.Again, I do not make those comments as a criticism of those who have participated in Mr Toma’s custodial treatment and assessment. No doubt what has been said and done, both in, and in reliance on, the documents and information I have examined, was done conscientiously and with the motive of making the best decision in all the circumstances. But I am left with the strong impression that, for whatever reason, the process failed. I am very much of the impression that, with effective representation, Mr Toma would have been able to constructively emphasise the positive aspects of his rehabilitation and make an even more persuasive case in favour of his application in these proceedings.
Decision
176.The ultimate decision to be made cannot be reduced to a set of propositions by which a particular answer comes about. Mr Toma was convicted of murder. The Australian community cannot reasonably be expected to accept any material risk that he would re-offend in that way, or that he would engage in any other criminal conduct of a significant kind. There is no such material risk. But the offence of which he was convicted is so serious, and its consequences so devastating to those affected by it, that very great reservation is required. I have approached the present matter with that reservation and I have given primary consideration to assessment of the risk of Mr Toma re-offending. I have revisited the concerns expressed in the Pre Release Report, despite my rejection of it. I have reconsidered the sentencing judge’s views. I have listened to Mr Toma. I have formed my own impression of the apparent fairness and diligence with which he has been treated at important stages of his incarceration. My impression is that, from his perspective, there appear to be good reasons for him to perceive that he has not been fairly treated. The fact that he nevertheless has persevered, and markedly changed his performance and repute, is very much to his credit. It encourages me to the view that he would in truth, as Dr Westmore indicated in 1998, represent a negligible risk of re-offending.
177.My assessment that Mr Toma has a negligible risk of re-offending is a primary consideration. The other presently material primary consideration is the interests of his children. If I had concluded that Mr Toma had a significant risk of re-offending, none of the other primary considerations would have warranted being accorded sufficient weight to overcome the significance of that consideration. But, given my assessment that Mr Toma has a negligible risk of re-offending, I do consider that the hardship he would suffer by the cancellation of his visa, principally the loss of contact with his brother and son, is also a persuasive consideration.
178.The decision under review is set aside.
I certify that the 178 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
Signed: .....................................................................................
Associate: B. DhanasarDates of Hearing 24 and 28 May 2010
Date of Written Reasons 9 June 2010
Representative for the Applicant E. Toma (Self)
Representative for the Respondent A. Tibell (Clayton Utz)
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