Gallegos and Minister for Immigration and Multicultural Affairs - [2000] AATA 1160

DECISION AND REASONS FOR DECISION [2000] AATA 1160

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/260

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JUAN ANTONIO GALLEGOS
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date21 December 2000
PlacePerth

Decision      The decision under review is affirmed.
  ...........(sgd S D Hotop)..........
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – deportation – applicant a Chilean citizen – applicant convicted of serious offences in Australia including domestic violence – applicant liable to deportation – applicant has two children under the age of 18 years in Australia – Ministerial direction regarding criminal deportation – primary considerations and other relevant considerations – expectations of Australian community – protection of Australian community – seriousness and nature of applicant's crimes – risk of recidivism – likelihood of deterrence – applicant's crimes abhorrent and intolerable and high risk of recidivism in context of domestic violence – best interests of child or children – hardship to applicant – hardship to Australian citizens or permanent residents – balancing of all relevant considerations favours deportation.
Migration Act 1958 ss 200, 201, 499
General Direction – Criminal Deportation – No 9

REASONS FOR DECISION

21 December 2000 Associate Professor S D Hotop, Deputy President

Juan Antonio Gallegos ("the applicant") has applied for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent"), dated15 June 2000, ordering the applicant's deportation pursuant to s200 of the Migration Act 1958 ("the Act").
At the hearing the applicant was represented by Mr A Paternoster, solicitor, and the respondent was represented by Ms L Thipthorp of the Australian Government Solicitor's office. The Tribunal had before it the documents ("T documents", numbered T1-T25) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered by the applicant (numbered A1-A8) and by the respondent (numbered R1-R8):

bundle of letters and photographs received by the applicant while in prison from Fiona McGlade (A1)
extract (comprising 11 pages) from Ministry of Justice records relating to a physical attack on the applicant while in Albany Prison (A2)
outline of evidence of David Matthew Bickham (A3)
outline of evidence of John Mammana (A4)
handwritten statement of Roxana Gonzalez, dated 18 July 2000 (A5)
Victim Impact Statement of Fiona McGlade prepared on 31 December 1998, dated 23 June 2000 (A6)
affidavit of the applicant prepared for proceedings in the Family Court of Western Australia instituted by the applicant regarding contact with Louis Gallegos-McGlade, dated 26 May 2000 (A7)
documents relating to the completion by the applicant of a Skills Training for Aggression Control Program at Wooroloo Prison Farm in November/December 1999 (A8)
Ministry of Justice Mediation Report relating to the applicant, dated 14 December 1999 (R1)
Ministry of Justice Mediation Report relating to the applicant, dated 6 January 2000 (R2)
handwritten statement of Roxana Gonzalez, dated 18 October 2000 (R3)
report of Lisa Hewitt, Community Corrections Officer, Ministry of Justice, dated 17 October 2000 (R4)
statement of Fiona McGlade, dated 18 October 2000 (R5)
letter from Acting Superintendent A C Albrecht, Internal Investigations Unit, Western Australia Police Service to Fiona McGlade, dated 24 September 1999 (R6)
affidavit of Fiona Brigid McGlade prepared for proceedings in the Family Court of Western Australia instituted by the applicant regarding contact with Louis Gallegos-McGlade, dated 23 June 2000 (R7)
report of Helen Fowler, Psychologist, dated 25 October 2000 (R8).

Oral evidence was given by the applicant and, on his behalf, by David Matthew Bickham and John Mammana. The respondent called the following witnesses: Roxana Gonzalez, Lisa Dominique Hewitt, Fiona Brigid McGlade (by telephone) and Helen Fowler. Ms Jean Theodora Page, a NAATI accredited interpreter in the Spanish language, acted as interpreter.
The Factual Background

The relevant background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows.
The applicant was born on 31 October 1968 in San Felipe, Chile and is a Chilean citizen.
The applicant first arrived in Australia on 25 July 1990 and was granted a permanent entry permit on 27 September 1990.
The applicant departed Australia on 23 December 1994 for the purpose of visiting his family in Chile, and he returned to Australia on 21 April 1995. He has remained in Australia since that date.
The applicant's criminal history in Australia is as follows:
Date of Conviction Offence Sentence
09.12.96 Breach of Restraint Order 6 months CRO (supervision order).

09.12.96      Threats to Kill         18 months imprisonment. Appeal allowed. Sentence set aside.
08.01.99 (date of offence – 25.10.98)             Aggravated burglary          3 years and 6 months imprisonment concurrent.
08.01.99 (date of offence – 25.10.98)             Assault occasioning bodily harm 2 years imprisonment concurrent.
08.01.99 (date of offence – 25.10.98)             Assault         9 months imprisonment concurrent.

In relation to the abovementioned offences committed by the applicant on 25 October 1998, Blaxell DCJ made the following comments when sentencing the applicant on 8 January 1999:

"Juan Antonio Gallegos, you have pleaded guilty to three serious offences. The first is an offence of aggravated burglary, the second an offence of assault occasioning bodily harm and the third an offence of assault.
The facts of these offences are that the complainant, a 38-year-old woman, was known to you. You had a 6-month sexual relationship with her between April and October last year but you didn't live with her and it seems that she wanted this relationship to come to an end. On the evening of 25 October 1998 you approached her in a nightclub in Fremantle, you spat on her twice and you also wiped or touched her face with a tissue covered with faecal material and she then went home and you then went to that home at about 10.45 pm …
… you did enter her home through an unlocked front bedroom window. You at no time had permission to enter her house.
The complainant heard you enter the house and she called the police and while she was on the telephone you approached the complainant. You ripped the phone from her hands and hung the phone up. You then pushed her into the lounge room and you started punching her violently in the face, chest and arms and you then pushed her causing her to fall over and you kicked her in the back.
As a result of that, she received a number of injuries which I will deal with shortly and she was in need of medical attention and also during the course of that assault, you produced a knife which I think you obtained from the kitchen and you threatened her with a knife and certainly the complainant was in fear of her life.
When the complainant was treated she was found to have a fractured right clavicle, bruising of the breast, the chest wall and the mid-thoracic region, redness of the left forearm and a soft tissue injury to the left neck. I have been provided with photographs of those injuries and I note that there are numerous bruises and abrasions and the complainant obviously at the time of being photographed was in a very distressed condition.
You are 30 years of age. You have worked for 4 years as a manager of a garden centre or a nursery and you are highly regarded by your employer. I have got a reference from your employer. You came from Chile in 1990. You lived initially with your wife and you have a 5-year-old son but you are now divorced from your wife and you have been convicted in 1996 of breaching a restraining order which was obtained by your wife. I have also been provided with a reference by another acquaintance and I note that you at least have some people who regard you with some degree of regard apart from your employer.
The offences you committed are serious and I consider the aggravated burglary to be certainly more than at the moderate range within the scale of such offences. It's a home invasion of the type that terrorises the victim and in this regard I have got a victim impact statement which indicates the difficulties that the complainant suffered as a result of the physical injuries, also the fact that she continues to fear for her safety, that she at one time left her home because she felt it necessary to do that and she ceased her employment because of her injuries and the trauma that she sustained and in general, the victim impact statement sets out all of the effects that one would ordinarily expect from an attack of this type.
A very aggravating fact of the offences is that you knew she was pregnant and you attacked her in a very vicious manner while she was pregnant and without regard to the safety of the foetus. Now, in my view, these offences are so serious that terms of imprisonment are the only appropriate penalties notwithstanding you don't have any significant prior record.
I consider that in respect of the burglary or the aggravated burglary, it could perhaps justify a sentence of 5 years but perhaps on reflection, certainly 4 and a half years' imprisonment but in view of the fact that you have pleaded guilty on the fast-track system and you haven't put the complainant through the ordeal of having to give evidence, I'm reducing that sentence to 3 and a half years' imprisonment.
On count 2, the assault occasioning bodily harm, you're sentenced to 2 years' imprisonment. In respect of the section 32 matter, the assault, you're sentenced to 9 months' imprisonment. I direct that those three terms are to be concurrent with each other which means you have a total of 3 and a half years' imprisonment. I'm backdating those sentences to 5 January to allow for the 3 days you have had in custody and I will also direct that you should be eligible for parole…".

(T11, pp111-113)

At the time when the applicant committed the abovementioned offences on 25 October 1998 he had been in Australia as a permanent resident for a total of 7 years and 10 months.
On 4 March 2000 the applicant was released from prison on parole.
On 15 June 2000 a delegate of the respondent made a deportation order against the applicant, pursuant to s200 of the Act. The applicant was notified of that deportation order by letter dated 19 June 2000 which was delivered by hand on 29 June 2000.
Since 29 June 2000 the applicant has been detained in immigration custody pursuant to s253 of the Act.
On 26 July 2000 the applicant lodged with the Tribunal an application for review of the deportation order made on 15 June 2000.
The Applicant's Evidence
The applicant told the Tribunal about his education in Chile before he came to Australia. He said that, after completing school, he went to university and studied agriculture and became qualified as an "agricultural engineer".
The applicant said that he first arrived in Australia on 25 July 1990 on a "fiance visa" and he subsequently married Roxana Gonzalez on 18 August 1990. He said that the marriage was happy but that they were always arguing about money and work. He explained that he "worked a lot" and was also studying English and Ms Gonzalez wanted to spend more time with him. He said that their arguments involved violence, although he had promised her that he would "never raise a hand to her" and had told her that he did not want any violence in their relationship. He said that she was the first to raise a hand and when she hit him on the first occasion he did not respond. On another occasion when they were arguing about money he said that he pushed her and she stabbed him in the leg with a knife whereupon he took her by the throat and told her that he did not want any violence. The applicant also told the Tribunal about another occasion in February 1995 when he and Ms Gonzalez were in Chile on a holiday. He said that he attacked her with a knife and was stabbing her but he could not remember how many times he had stabbed her. Asked why he had stabbed Ms Gonzalez on that occasion the applicant explained that she had told him that she wanted a divorce and wanted him to remain in Chile and not be with her and their son in Australia. He added:
"I know what I did was wrong but I didn't have any other recourse, I didn't know how to reply to her to make an impression on her about this."

(Transcript, p14)
He said that after this incident Ms Gonzalez was taken to hospital and he was arrested and spent 14 or 15 days in custody. He and Ms Gonzalez then separated and were divorced in 1996.

The applicant was then questioned about the child of his marriage to Ms Gonzalez. He said that they had a son – Braulio – who was born on 14 July 1993 and was 18 months old when they separated. He said that when he returned to Australia from Chile he went to the Family Court and obtained access to Braulio. For the first 2-3 months Ms Gonzalez's mother would bring Braulio to meet him in an open space every Sunday for 2-3 hours. Thereafter he would have Braulio on his own on Sundays and then both Saturdays and Sundays. After about a year, Braulio would stay with him for the whole weekend every fortnight. He said that that contact with Braulio continued until he was imprisoned in January 1999. He said that when he was released in March 2000 he came to an agreement with Ms Gonzalez that he would see Braulio on Sundays and such contact with Braulio continued until he was detained in immigration custody.
The applicant was questioned about his work history in Australia. He said that since 1991 he had been employed by John Mammana, first as a factory hand in a plastics factory and subsequently in a garden centre. He said that when he was taken into custody Mr Mammana told him that he would keep his job for him because he was a responsible worker. He said that if he were able to seek employment in Australia in the future he would work for Mr Mammana.
The applicant was next questioned about his relationship with Ms McGlade. He said that he first met Ms McGlade in 1998 through a friend who knew about his break-up with his wife and who introduced them because he thought that she would be able to help the applicant psychologically by becoming his confidante. The applicant added that he was not really hoping to have a relationship with Ms McGlade.
The applicant said that his relationship with Ms McGlade was not good and that he had been imprisoned for 14 months for hitting her. He referred to an incident in which he claimed that Ms McGlade hit him on the face and kicked him in the back because she was angry that he had gone out on his own instead of with her. He said that he told her that he did not want violence and that she then asked him to forgive her. As regards the incident which led to his being imprisoned, the applicant said that Ms McGlade had previously shown him where she left the keys to her house and he entered her house through a door and then through an open window, pulled the telephone out of the socket, asked her why she was "torturing" him like this, pushed her away and then hit her several times with his hands and with his feet. He explained that he had attacked Ms McGlade because he believed that she had used him in order to become pregnant. He claimed that she had acknowledged this at the time and said that she did not care for him and only wanted to have a baby. Asked how he felt now about his conduct towards Ms McGlade, the applicant said:
"I really feel very bad about what I did. There are other ways of conversing or talking about this matter."

(Transcript, p21)

The applicant said that following the abovementioned incident, Ms McGlade obtained a restraining order against him, and he obtained a restraining order against her. He added, however, that, notwithstanding the restraining orders, there was contact between them. He said that Ms McGlade visited him in Albany Prison, he once telephoned her from Albany Prison (she having given the prison authorities her telephone number and agreed to pay for the call), and she sent numerous letters and approximately 60 photographs of herself and their baby (Louis) to him in Albany Prison. Those letters and photographs were tendered in evidence (Exhibit A1). He added that Ms McGlade had also given him about 40 photographs to send to his family in Chile. He said that in those letters Ms McGlade told him about her pregnancy and about the progress of their child since his birth. He said that on seeing the photographs of Louis he was very happy and told Ms McGlade that he wanted to be part of the family and did not want to commit the mistakes he had made in the past. He also said that in one of her letters Ms McGlade had enclosed papers for him to sign in order that his name would be included in Louis' birth certificate as the father.
The applicant next recounted an incident which occurred while he was in Albany Prison. He said that he was attacked by 3 other prisoners and was hit on the head several times, stabbed in the ear with a knife and hit with a brush. He added that he did not remember much about the assault, but remembered waking up in hospital afterwards. Ministry of Justice documents tendered in evidence (Exhibit A2) confirm that on 14 August 1999 the applicant, while in Albany Prison, suffered facial and head injuries and a traumatic perforation of his left tympanic membrane after which he complained of dizziness, nausea, headache, left ear pain and hearing loss, and also include a medical report by Dr G Hee, dated 2 February 2000, stating that the applicant's left ear injury had now healed, as confirmed by an audiogram. The applicant told the Tribunal that, after the abovementioned incident, he was unable to concentrate or to read for long or to remember what he had read and that, after his release, he was unable to concentrate when driving a car and he consulted a doctor because he was suffering from bad headaches and ear-ache and was subsequently referred by that doctor to a psychiatrist. He added that he did not get to see the psychiatrist because he was arrested and detained by the immigration authorities.
The applicant told the Tribunal that during his time in prison he undertook a course in anger management. Ministry of Justice documents confirming that the applicant completed the Skills Training for Aggression Control Program at Wooroloo Prison Farm in November/December 1999 were tendered in evidence (Exhibit A8). A "Completion Summary Form", dated 14 December 1999, records that the applicant attended all 10 sessions of the program, from 30 November 1999 to 14 December 1999, and contains the following "general comments" regarding the applicant:
"Juan has been a very co-operative group member, participating well in all group activities and discussions. Juan has displayed a keen interest in considering the concepts discussed in the course, and he has completed all course requirements."

He said that he had learnt from that course how to control himself and how better to control his anger and not to lose his temper, as well as to seek other means of communication and other means of resolving problems with his temper. Asked why the Tribunal should accept that he will not engage in violent conduct in the future, the applicant responded:

"Violence doesn't take you anywhere. From my own experience and my experience with Fiona and with my ex-wife, and my own experience, violence isn't the answer. Violence – it doesn't resolve anything. So, I want to do more courses in – another course in anger management. While I was in Armadale I started a course, I asked for it and started a course and I want to do more study on anger management."

(Transcript, p30)

As regards the applicant's intentions regarding future contact with Roxana Gonzalez, Braulio, Fiona McGlade and Louis, should he be allowed to remain in Australia, his evidence was as follows:
"MR PATERNOSTER: Mr Gallegos, if you were free to stay in Australia, would you anticipate having any contact with your first wife, your ex-wife?
THE INTERPRETER: No. Not – not with my ex-wife, but I – I would want to continue with my access to my son, because we – we have a very nice relationship, my son – my son and I and that's the important thing.
MR PATERNOSTER: Now, Mr Gallegos if you're free to remain in Australia, would you expect to have any contact with Fiona McGlade?
THE WITNESS: No.
MR PATERNOSTER: Okay and what, if you are free to stay in Australia, what would your attitude be with regard to your – the child Louis?
THE INTERPRETER: I would leave them alone. I would leave Fiona and her child to live their own lives, but I would want to be involved in the life of my first son, yes.
MR PATERNOSTER: Okay. Finally Mr Gallegos, what do you say is the most important reason why you believe you should be allowed to stay in Australia?
THE WITNESS: The reason?
THE INTERPRETER: For my son, because I love him a lot and he cares for me, we have a very good relationship and he's rung me at home and I've written to him and he's written to me, yes, and he's the most important thing for me, is to be close to my son. And my ex-wife said that those 14 months that I was gaoled, that he behaved very badly, he was very bad and it was a complete change when I came out and he could see me again. Because we're really good friends and I tell him that he mustn't, you know, commit mistakes and we have a very good friendship."

(Transcript, p29)

In cross-examination, the applicant was first referred to the incident that occurred in Chile in 1995 when he stabbed Ms Gonzalez. He denied that he had stabbed her 9 times (as she claimed) but he acknowledged that he had stabbed her "several times", but he added that he could not remember how many times. Asked whether he was holding Braulio at the time, he said he did not remember. He said that after that incident he saw a psychiatrist in Chile once every 2 weeks for a period of about 3 months and the psychiatrist prescribed anti-depressant medication. He said that after he returned to Australia a friend, who was a psychologist but is now retired, helped him with anger control and communication skills over a period of about 8 months.
The applicant was next referred to the offences of breach of a restraint order and threats to kill of which he was convicted on 9 December 1996. The applicant acknowledged that he had breached a restraint order taken out against him by Ms Gonzalez but he said that he had never threatened to kill her. When it was put to him that he had pleaded guilty to both offences, the applicant said that his English was not good enough to understand what the magistrate was saying and that his lawyer had spoken to the DPP and it was agreed that the threat to kill should not be recorded.
The applicant was also referred to the offences which he committed against Fiona McGlade on 25 October 1998 and of which he was convicted on 8 January 1999. In relation to the offence of assault, it was put to the applicant that he had approached Ms McGlade in a nightclub and spat on her and wiped faeces on her face. The applicant explained that they had been at the beach that morning and had been arguing; that she told him she was going out later that day with a girlfriend; that he said he would like to ring her father and talk to him about her "problems", whereupon she said that she had a "recently-sharpened" knife and would "use it". He said that on that night he went to a nightclub and saw her there with a man and confronted her, whereupon she poured a glass of water over him and he then spat on her. He continued:
"So I went to a restaurant and I got a serviette and I put some tomato sauce and mayonnaise and Coca Cola and mixed it together. And then I put it on her face."

(Transcript, p58-59)
Asked why he did that, the applicant explained that Ms McGlade was always lying to him and threatening him, including threatening that she would go to the Immigration Department and have him deported.

As regards the offences of aggravated burglary and assault occasioning bodily harm, the applicant said that after the incident at the nightclub he went to Ms McGlade's house later that night with the intention of talking it over with her. He said that Ms McGlade told him that she did not want him to be involved with the baby and he said to her that she had used him to get pregnant. He said that he remembered "hitting her on the shoulder and under (sic) the leg", but not on the chest. When it was put to the applicant that he then got a knife from the kitchen and threatened her with it, he said it was not a knife – it was a "big black spoon". (Transcript, pp 61,62)
The applicant acknowledged that he has an anger problem. He said that he does not get violent when he loses at sport, but when people abuse him emotionally he gets violent because when he was 8 years old he was abused by women, including a friend of his mother. He added that his mother's friend used to touch him on the body and when she became pregnant she said it was his baby and threatened to tell his mother unless he gave her beer or cigarettes from his father's business. He said that since that time when he suffered psychological abuse he has been unable to trust women.
The Evidence of David Matthew Bickham
Mr Bickham told the Tribunal that he is employed by Mr J Mammana as a horticulturalist at the Supreme Garden Centre. An outline of Mr Bickham's evidence, which was tendered to the Tribunal (Exhibit A3), states:
"…
2.I have known Mr Juan Gallegos for the last two and a half years, which is the time I have been employed at the Supreme Garden Centre. My relationship with Mr Gallegos is only on a professional basis and I do not socialise with him.
3.I know that Mr Gallegos has spent some time in gaol and has had some problems in the past.
4.In the time I have known Mr Gallegos I have found him to be an extremely good and hard worker. He is extremely honest and I have never seen him behave violently.
5.When I have worked with Mr Gallegos he has shown himself to be very organised and knowledgeable. He is a credit to his employer and a good person to work with.
6.In the time I have known him I have come to know Mr Gallegos as a man of good character."

In his oral evidence Mr Bickham said that he had in fact known the applicant for three and a half years, and that paragraph 2 of his written outline of evidence should be amended accordingly. Otherwise he agreed with its contents. He elaborated on the applicant's work performance. He said that the applicant was "very hard working, very conscientious" and agreed that he had a "strong work ethic". He added that the applicant was always courteous and never aggressive towards customers and was very helpful to them in giving horticultural advice and in assisting elderly customers to carry heavy merchandise to their cars. As regards the applicant's relations with other staff members, Mr Bickham said that the applicant got along with the rest of the staff quite well although he acknowledged that the applicant had a "personality clash" with the sole female employee and that, in order to avoid conflict, they "kept out of one another's way". Asked on what basis he considered the applicant to be of good character, Mr Bickham said it was just on the basis of his "working ethic" and that he had no social relationship with him at all.
The Evidence of John Mammana
An outline of Mr Mammana's evidence was tendered to the Tribunal (Exhibit A4) and in his oral evidence Mr Mammana confirmed that its contents were true and correct. That outline states as follows:
"1.My name is John Mammana. I am the proprietor of Down Under Plastics and Supreme Garden Centre.
2. I have known Mr Juan Gallegos since he arrived in Australia.
3.In that time I have known Mr Gallegos as both an employee and as a friend. Mr Gallegos has been employed by me at Down Under Plastics and as a foreman/supervisor at Supreme Garden Centre.
4.In the time I have known Juan Gallegos he has been a good employee. He has consistently been a hard working, responsible and loyal employee. I have always found him to be honest and reliable and he is one of the best employees I have ever had.
5.I have also known Juan as a good friend and have frequently socialised with him.
6.In the time that I have known Juan as a friend and as an employee I have come to know him as a person of good character.
7.I am aware of the problems Juan has had and that he has spent some time in gaol. I think there is little risk of him re-offending and the problems he has had in the past are quite out of character."

Mr Mammana told the Tribunal that, from his observation, the applicant was very polite towards, and well liked by, customers of the plant nursery and other with whom he had dealings in the course of his employment. He said that he was waiting for the applicant to return to his employment at the nursery. As regards the applicant's domestic relationships, Mr Mammana said that he was very close friends with Roxana Gonzalez's family and he had been invited to their wedding and that thereafter he and his wife socialised very often with the applicant and Ms Gonzalez as a couple. He said that, from his observation, their relationship was "okay" in the beginning but slowly deteriorated and they had a lot of arguments. He attributed the deterioration of the relationship to Ms Gonzalez's changing after she came to live in Australia, wanting to go her own way and be more independent and not be controlled by the applicant, and the applicant' failure to accept this. He explained that the culture in Chile is that the man is the head of the family and everything revolves around him because he is the provider and he owns and controls the whole family. He said that he was aware that the applicant had stabbed Ms Gonzalez in Chile, having been informed of it by Ms Gonzalez's family when it happened, and that he had told the applicant that he did not approve of what he had done. Asked whether he was concerned when he heard that the applicant had hit Fiona McGlade, Mr Mammana said that he thought she was "looking for it", that she "knew very well that [the applicant] was very jealous", and that he thought she "more or less provoked it to happen". He added that, in terms of Chilean culture, Chilean people are "quite jealous people".
The Evidence of Roxana Gonzalez
Ms Gonzalez told the Tribunal that she first met the applicant when she was on a holiday in Chile in 1989 and that, when she returned to Australia, she sponsored him to come to Australia where they got married in 1990. She said that their relationship was good at first, but that in about September 1990 (shortly after they were married), the applicant started to become violent and hit her "a lot". She said that it was the applicant who initiated the violence although, on one occasion when the applicant was punching her, she, in order to defend herself, took a knife from the kitchen and inflicted a small cut on the side of his leg. She said that on another occasion the applicant took a table lamp and wrapped the cord around her neck. Asked what triggered those violent incidents, Ms Gonzalez said that the applicant had a bad temper and was a jealous husband, but that she had not done anything to make him jealous. She said that such violent incidents occurred, on average, every 2-3 months and that the applicant would tell her he was not going to do it again and would ask her to give him another chance. She added that she did give him a few chances but "there always was a next time".
Ms Gonzalez was asked about the incident that occurred in Chile in 1995. She told the Tribunal that while she was waiting at a bus stop to catch a bus to visit her aunt she and the applicant had an argument during which he said that he needed to go and get something from the house. When he returned they kept arguing and she told him that she was going to pack her bags and, instead of going to her aunt's place, she was going straight back to Australia and getting a divorce because she could not live with him anymore because he was getting so abusive. She said that she turned around and then felt a "punch" on her back and then a further "punch" on her chest and she then saw that the applicant had a knife and that she was bleeding. She added that he kept on stabbing her with the knife and that, while doing so, he was holding their son, Braulio, who was then only one and a half years old and was crying. She said that she felt that she was going to die and that an ambulance was called and she spent 10 days in hospital – 2 days in intensive care and the other 8 days recovering.
Ms Gonzalez said that her family pressed charges against the applicant but that, at the request of the applicant's lawyer, the charges were dropped so that he would give her the necessary permission to take Braulio out of Chile and back to Australia. She then returned to Australia and the applicant returned to Australia about a month later, after spending 20-21 days in gaol in Chile.
Ms Gonzalez told the Tribunal that after the applicant returned to Australia he called her and she then took out a restraining order against him. Asked whether the applicant breached that restraining order, Ms Gonzalez confirmed that he did and described the circumstances. She said that the applicant approached her in a nightclub and told her that he was going to kill her and later when she was leaving the nightclub with a few friends he tried to run them over with his car. She said that the applicant told her friends that he was "just trying to scare the hell out of her".
Ms Gonzalez next told the Tribunal about contact between the applicant and their son, Braulio. She said that the applicant had applied for access to Braulio through the Family Court and that at first he had supervised access which "went well", and then access by himself including access on weekends and on Braulio's birthday. She said that during the periods when the applicant has been in custody Braulio did not see the applicant and was told by her that the applicant was away on holiday. She said that during the period from March to June 2000, when the applicant was on parole, he had contact with Braulio on Sundays for 2-3 hours and sometimes 5 hours. She said that Braulio now asks after the applicant "once in a while" and that the applicant writes to Braulio in Spanish and she and her mother read the letters to him. She described Braulio as a "very happy child".
As regards financial support for Braulio, Ms Gonzalez said that the applicant pays "a little bit but hardly" by way of maintenance and that, if he "feel like paying the money", she receives it through the Child Support Agency. A letter from the Child Support Agency dated 7 March 2000 (T11, p155) states that the applicant paid a total amount of $1,127.00 child support to Ms Gonzalez during the period from 24 April 1994 to 7 March 2000. Ms Gonzalez also told the Tribunal that the applicant sometimes bought clothes for Braulio and gave him pocket money and once paid for his school fees when he was in kindergarten about 2 or 3 years ago.
The Evidence of Fiona McGlade
Ms McGlade gave oral evidence by telephone from Melbourne. She told the Tribunal that she met the applicant at a club in April/May 1998. She said that their relationship started off quite well and they had some good times but then "there quickly became apparent some pretty jealous behaviours and unacceptable behaviours" – such as accusing her of being with other men, turning up at her house drunk – and she had "second thoughts" about the relationship and eventually "called it off". She said that she then found herself to be pregnant – which was unintentional – and she informed the applicant of this and they continued to see each other but their relationship continued to be unstable and volatile and she decided definitely to call it off in October 1998. She added that she was assaulted by the applicant the following night.
Ms McGlade said that, during her relationship with the applicant prior to the abovementioned assault on her, there had been a lot of arguments between them. She referred to two separate occasions on which she used physical force against the applicant during an argument between them. On one occasion she pushed the applicant "out the door"; on the other occasion she insisted that he leave the house but he refused and, when she tried unsuccessfully to push him out the door, she punched him in the jaw. She added that she had never hit anyone before and that this had "shocked" her. She said that the latter incident occurred about 2 or 3 weeks before the abovementioned assault on her in October 1998.
Ms McGlade was asked to describe the events immediately leading to the abovementioned assault, and the assault itself. She said that on the day before the assault, she decided to finally end their relationship. She continued:
"… so I rang him at work and we argued and then I – he insisted that I meet him at a café that afternoon and I met him and said it was finished, that he was the father of the baby, he could decide what role he wanted to have there, but as far as I was concerned the relationship was finished between us, or the sexual relationship was finished between us. I didn't want to have bad feeling between us; he could see the baby, he could be involved, but things were finished between us. And that also I was very angry, I didn't want him to meet my parents that night. And he was very angry and I – when we left the café he followed me in his car – I was riding my bike, and he followed me in his car in a way that I just thought was bit – bit threatening, but anyway, then he stopped and said: okay, he wouldn't come that night and meet my parents, he had been saying that he was going to turn up anyway and make a scene, but that he wanted to meet me the following day and I said: okay, we would go to the beach and we'd talk about it. So the following day I went and picked him up from his house and we went to the beach and we went body-surfing and then we argued again because – I think he made a bit of an advance to me and went to put his arm around me or something like that and I said it was over and he got very angry with that. He asked me what I was doing that afternoon, I said I was meeting a friend, we were going to see some music, and he asked me 'Who?' and I said it was my friend, Steve, he's the friend I've had for quite some time, in Fremantle, and I said – yes, I just said we're off to see music that afternoon and that evening. So I dropped him off at his house and he kept ringing me on the phone saying he was going to make trouble for me and Steve. He rang Steve and said he was not to see me and to – you know, that Steve was the reason why I was breaking things up with him and Steve had come between us – which is not true, Steve is just a platonic friend. Steve came round and we went off to the music, it was at Murdoch University, and we were there the afternoon and then we went that night to Kulcha, which is a music club in Fremantle, to watch a performance and I was sitting there with Steve and – I think you've probably got all this on – on Police documentation, but I was sitting with Steve and Juan came in with Christian and started abusing Steve and then I intervened and told him to stop. And then Juan spat on me and I threw a drink on him and asked him to leave and – which he refused, so Steve and I moved, we moved our chairs and sat on the other side of the room. And we were sitting watching the music and probably about 5 or 10 minutes later, Juan returned by himself and came up behind me and wiped faeces across my face and said, 'This is you (sic), baby'. And turned, ran off. And then I went and washed it off as best I could but it still stank. And - - -
Just to interrupt, Ms McGlade?--- Yes.
It was definitely faeces? --- Yes.
How did you know? From the – that it was faeces? --- I could smell it. I went to the bathroom and I could – I had it all across my face.
So it wouldn't be a concoction of tomato sauce and Coke and? --- No, no, no, it was faeces. Stephen and I went to the Police station and made a report of that. An assault report. And that was taken by Sergeant Ritchie. And he confirmed – there was still faeces on my face. He confirmed that that is what I had been assaulted with."

(Transcript, pp 124-126)
Ms McGlade then described the events of later that night after she had returned to her home:

"… I was just getting ready to go to bed when I heard what sounded like Juan's car pull up at the front of the house. And was there for a while. And I was in my kitchen, watching the back gate, because that is where he usually comes in the house. I thought if I see him come in, as soon as he comes, I will call the Police. I dialled all the numbers. I really just had to press the last number to call them. So I was there watching the back gate. Then I could hear him at the front of the house. So I called the Police. I didn't think he could break in. The front of the house was locked with a padlock but he managed to break through that. I turned around and he was there. He was inside my house. I was through to the Police. I quickly told them who I was, where I was. Juan pulled the phone out. And then proceeded to bash me with punches and kicks and – across the kitchen, across the living room floor. And on the couch, he was bashing me from above. I told you he kicked me a few times. Then I think you have got a record of my injuries. I got a broken collar bone from that and various other things. But then at the end of – I thought – I think I jumped up, I grabbed him. Because I felt that he was – the punches would not be so hard if I was – if he couldn't come from any distance at me. I grabbed him and then he stopped. And I thought it had finished. He went to the kitchen, pulled out a knife. Came back with a knife. Looked at it. Went back to the kitchen, got a bigger knife. And held it there and said, 'Tell me it is not my baby.' And I found this a very difficult position to be in because he – that had been his accusation to me all the time. That it was someone else's baby which was not true. But I told him that it didn't have to be. It was baby (sic). And that I would raise it as my baby. If he wanted to – it could be what he wanted. If he wanted it as his baby, it could be. If he didn't want it to be, it didn't have to be. That it would be my baby. And then he said, 'Tell me that you will go back to Melbourne.' And I said, 'I will. I am going back to Melbourne.' And then he relaxed somewhat and I asked him to sit down. He said that I had to know that I had hurt him. And I said, 'I could see that and I am sorry.' He relaxed and he said that I could what I like (sic). I could call the Police. Which I did. And he waited and they came. And they took him to the station and they took a statement from me. Then later that night I went to the hospital and they x-rayed me and examined me and then I went home. And the next morning I took out a restraining order, a violence restraining order.
Ms McGlade, just to interrupt? --- Yes.
During the assault, what was going through your mind? --- Well, I suppose I was very surprised. I mean, I had never been assaulted before. I was stunned really and I couldn't believe that he was hitting me. And he kept – I was yelling. My house is semi-detached. I had neighbours just on the other side of the wall. I was surprised that they didn't come and do anything because I – they used to bash on the wall if I turned my music too loud. But I was yelling and screaming, 'Stop, you will kill me.' Because I thought he might. Well, no, he kept going. I didn't know what he was going to do. I was yelling at that. Then when he had the knife, I was very frightened. I really didn't know if he would use it or not. I wondered if, you know, if that was the end for me really. But I couldn't say I thought, 'Yes, it definitely was' or 'No, it wasn't'. I just – I mean it probably all happened in 15 minutes and I know when he had the knife there, I looked – I was really – I was very alert. I was trying to work out if there was any way I could get out of the situation. I knew the door was deadlocked. I had locked myself. It was the French doors. Glass. I thought perhaps I could kick my way out of it but he was in between me and the door so I didn't feel that there was anything I could do really. I was really in his hands.
And were you concerned for your unborn child? --- Of course. Of course I was. I said nothing about the child until, you know, he said, 'Tell me it is not my baby.' Before that I didn't say, you know, 'Stop, I am pregnant' or whatever because I didn't know if that would further inflame things. I didn't know if it was – would be – you know, in my interests that I was pregnant or not in my interest. I just said nothing."

(Transcript, pp 126-127)

Ms McGlade was also asked to describe events after the assault. She referred to an incident a couple of days later when the applicant drove his car alongside and in front of a car in which she was being driven by her cousin and she described the applicant's behaviour as "very frightening" to her. She said that she received numerous calls on her mobile telephone and her home telephone and, when she reported this to the police, they advised her to stay elsewhere and so she stayed with a friend. She then described the circumstances when she returned to her home:
"And when I came back the next day the house had been broken into through the skylight in the bathroom. There were, sort of, boot marks down the wall. And also there were – there was, like, signs of disturbance in the bathroom. You know, muddy hands and things on the shower. I called the Police. They came and had a look and confirmed that there had been a break-in. The initial Police who came as well also identified a full set of hand prints on the window that had been used to exit the house because it was deadlocked. And they – the forensics came and they were identified as Juan's hand prints. Despite this, the detectives never really pursued it. They did nothing. But I can say that – I mean, that was a very terrifying experience for me. One month later to come home to my house the following day and – well, just imagine the scenario if I had come home that night. I would have come into a dark house, deadlocked the door behind me and would have found him inside the house and, you know, that just left me with a very chilling feeling inside."

(Transcript, p128)
She said that no action was taken against the applicant in relation to that incident because of a failure by the police to investigate the matter. She said that she subsequently lodged a complaint about the inaction of police which was investigated by the Internal Investigations Unit of the Western Australia Police Service. The respondent tendered in evidence a letter from the Internal Investigations Unit to Ms McGlade, dated 24 September 1999, confirming that her complaints that the police had refused to act on her complaint of a breach of a restraint order by the applicant and had failed to adequately investigate a burglary at her house had been sustained and that disciplinary action was being taken against the officers concerned. (Exhibit R6)

Ms McGlade was asked about contact she subsequently had with the applicant. She said that he telephoned her on New Year's Day (1999) and she agreed to meet with him, knowing that it was likely that he would be going to prison. She said that they met and the applicant apologised to her, acknowledged that what he had done was very wrong, said that he hoped that nothing like that would happen again and that he hoped the best for her and the baby and that he would be able to have something to do with the baby in the future, and asked if he could write to her from time to time when he was in prison. She said that she agreed to that, although they both acknowledged that their relationship was over. She continued:
"And so I did write to him when he was in prison. And it was just a – in a supportive way. Just hoping that things were going well for him. And I hoped that it was helpful to him. I felt very bad for his situation. You know, being in a prison in a foreign country. No friends there. I knew he probably wouldn't get many visitors because, initially, he was down in Albany and then later on he was in Perth. But he had no family here to visit him and I thought, you know, some of his friends might go but I thought most of the time it seemed to be a very lonely position and I hoped that that wouldn't be too destructive for him and end up him coming out worse than when he went in. I suppose – I mean, most people – I really was hoping very, very much that things – that he would turn things around so that there might be some chance that, you know, my baby wouldn't be in the position of learning, you know, that his father is a criminal and things being worse or things going from bad to worse really. I hoped that they would go from bad to somewhat better."

(Transcript, pp130-131)

Asked about her present views regarding the applicant, Ms McGlade responded:
"Well, I have a lot of concerns really about how things are now. Since – when Juan was in the prison, the letters were of a friendly nature. There was some intervention by the Victim Mediation Unit and that was – to negotiate some kind of amicable conditions for when he left prison. But that didn't – that broke down. That didn't work. And after that I received some letters that started to become threatening really. And, you know, saying that I have to let him see the baby and he can take me to the Family Court. And then as soon as – it seems as soon as he was released, really, the first opportunity, he was saying things and doing things that were really quite hostile towards me. And – for example, I was contacted by Immigration earlier on in the year who asked to take – who took a history from me. Essentially of what I have told you. Of the background to the assaults and what went on. And they had interviewed him beforehand and they reported that he had said to them that I was a drug pusher and that I was mentally unstable and things. And, you know, this is completely false. But – and also he had taken all the letters in. That was the other thing. He had taken the letters in and presented them to them saying that I was leading him on and things. And, I mean, that is just simply not true. It is nonsense. And I was just disappointed really very much that the first opportunity he seemed to be turning things round in a way that was, you know, to his advantage and to humiliate me and just me wonder (sic) if, you know, all the way through, if the letters really had been something that he was storing up to use against me at a further stage. And also he has taken out Family Court proceedings about me which, again, are full of a lot of malicious untruths. And I don't see anything that suggests that he has any genuine intention to be a – what is the word? Not supportive but to be a good father figure or, you know, to play any sort of proper or faithful beneficial role to my son. I don't see any evidence of that – in saying that. I just see a lot of evidence there that shows the determination to cause on-going trouble for me in my life. You know? I really have had a lot of trouble and it hasn't stopped. It has continued."

(Transcript, p131)
Finally Ms McGlade was asked what her feelings were towards the applicant having contact with her son, Louis. She responded:

"I feel I would probably be failing in my duty as a mother really to let him have contact with my son. I mean knowing the fuller picture now, that he has been violent to me and he has been violent to his ex-wife and that he seems to be showing an intention to create ongoing trouble for me and I feel that it would be a very bad move for me to let him enter my life in any way or have contact with my son, Louis."

(Transcript, p132)

The respondent tendered in evidence a signed statement by Ms McGlade, dated 18 October 2000. (Exhibit R5) That statement is as follows:
"I would like for the tribunal to know of my concerns for my own welfare and that of my son Louis if Juan Antonio Gallegos were to be released to reside in Australia. You are aware of the assault that took place in my home two years ago. You should also be aware that Juan continued to pursue me in the following ten weeks, despite this being specifically prohibited in both the restraining order I took out and the conditions of his bail. On one occasion he even went so far as to break into my house through a skylight. This behaviour convinces me that he willingly ignores any form of legal constraints placed upon him.
It took a long time for me to accept the precarious nature of my circumstances. I was very distressed by the assault upon me and did not want to believe that my child's father may be a dangerous individual. I wanted to believe that the assault had been a once-off event and that Louis' father would reform his ways so that there may be the possibility of some contact between them in the future. For these reasons, I agreed to some ongoing communications between myself and Juan with the hope that some support may assist him to address his difficulties. It is now obvious that this was the wrong decision as he has used personal correspondence and photographs at every possible opportunity in his attempts to further his own case and humiliate me. It is highly unlikely that I would ever again agree to any direct communications between us.
I have found Juan's actions since leaving prison to be extremely concerning. Towards the end of Juan's sentence, there was an attempt through the Victims Mediation Unit to negotiate some conditions for possible future communication and child access. These negotiations broke down when Juan refused to accept any role for formal mediation through the Family Court. As a consequence, a 'no contact order' was placed upon his parole and communications between us ceased. It was thought that this might be reviewed after a few months when he had been released and gotten his life settled. However, it appears that he has developed a highly disturbed attitude towards me and is using every means to create problems in my life. I am informed that he has made allegations to the Immigration Department that I am a drug pusher and that I am mentally unstable amongst many other things. These allegations have also been made on affidavits to the Family Court. They are false and defamatory and suggest to me a determination to threaten my personal and professional reputation as well as cause me personal grief.
As regards my child Louis, he is now 18 months old and is doing very well. The last two years have been very hard for me. It was a shattering experience to be bashed whilst I was pregnant and then to have to move states, lose my job and friends and start over again. My finances were extremely tight for a long time and they are only now occasionally back in the black. Whilst having a baby has been a very satisfying experience, the circumstances surrounding Louis' birth have been very difficult to come to terms with. However, Louis appears to be blissfully immune from the problems of his background as he continues to grow, thrive and delight all who know him. My main priority is for us to have a safe life, free of the threat of violence and intimidation. I have confidence now that I can raise Louis on my own and provide for him the opportunities for a happy life. Juan's behaviour since leaving prison has convinced me that his intentions towards us are malevolent and I will oppose any moves that he makes to try and re-enter our lives. From what I now know of his past and recent behaviour, I could not feel safe with him having contact with my child."

The Evidence of Lisa Hewitt

Ms Hewitt told the Tribunal that she is a community corrections officer with the Ministry of Justice and a qualified social worker. She confirmed that she was the applicant's parole officer and, in that capacity, saw him on a regular basis from 7 March 2000 to 20 June 2000. Ms Hewitt confirmed that she had, at the request of the respondent's solicitors, prepared a report, dated 17 October 2000, in relation to her contact with the applicant during his release on parole. That report, which was tendered in evidence (Exhibit R4), relevantly states:
"…
I am a Community Corrections Officer at Maddington Community Based Services, Ministry of Justice. I initially became involved with Juan Gallegos on 07.03.00 when he reported to this office upon his release to Parole which commenced on 04.03.00 and is due to expire on 03.05.01 and I was assigned to supervise his parole period. Between 04.03.00 and his last visit on 20.06.00 I had regular contact with Gallegos. As a Community Corrections Officer it was my role to supervise Gallegos by monitoring his compliance with the conditions of his Parole Order and his reintegration into the community. This involved regular visits to this office by Gallegos, initially on a weekly basis and later fortnightly during which time we discussed in depth his offending behaviour. During this period Gallegos was compliant with the conditions of his order, he reported as directed, completed the anger management program Skills Training for Aggression Control, and appeared to adhere to the special conditions of no direct or indirect contact with the victim. Despite Gallegos following the conditions of his Parole Order it appeared that he had not altered in his attitude towards his offending behaviour rather he appeared to justify his violence towards his ex-partner. Throughout my contact with Gallegos he viewed himself as the victim of female manipulation and claimed that he had been 'used' and appeared to imply that the victim had driven him into behaving in such a violent manner. Furthermore, in discussion with Gallegos on 23.05.00 he attempted to justify his use of violence towards his ex-partner based on cultural grounds, claiming that in Chile it was acceptable to use violence against women…
…".

Ms Hewitt confirmed that the applicant had successfully completed two anger management courses – one while he was in prison, the other after he was released on parole. She said that she had also referred the applicant to a domestic violence course conducted by Relationships Australia but that he was able to attend only two sessions in June 2000 before he was again taken into custody.
The Evidence of Helen Fowler
Ms Fowler told the Tribunal that she is a psychologist and confirmed that she had prepared a psychological report, dated 25 October 2000, regarding the applicant. That report, which was tendered in evidence (Exhibit R8), states:
"Writer's qualifications
I am a registered Psychologist and have been in private practice since 1995. I have a Masters in Clinical and Health Psychology. I have extensive experience in the assessment and treatment of offenders within the criminal justice system and provide a regular consultancy service to the Community Based Services of the Ministry of Justice. I have extensive experience in the provision of reports and advice to the Courts for pre-sentence purposes and to releasing authorities (Parole Board). I have extensive experience working with complex offenders, that is offenders suffering mental illness, severe personality disorder and substance misuse, both in Australia and Canada. I have worked extensively with sexual offenders and violent offenders. I have presented papers and workshops both nationally and internationally in the areas of offenders, personality disorder and addictions.
Assessment procedure
This report is based on information obtained from the following sources:
·     clinical interview held with Mr Gallegos on Sunday 22nd October 2000 at the CW Campbell Remand Centre. The duration of the interview was approximately one hour and fifty minutes
·     follow-up clinical interview with Mr Gallegos held on Tuesday 24th October 2000 at the CW Campbell Remand Centre. Ms Alicia Androszczu, a Spanish speaking interpreter from the Translating & Interpreting Service was utilised. At no time during my initial interview with Mr Gallegos did I believe that he did not understand or comprehend fully my questions. In the interests however, of allowing Mr Gallegos every reasonable opportunity to relay to me his opinion, beliefs and feelings related to his past and current circumstances I chose to utilise an interpreter in the second interview. The duration of the interview was approximately one hour and ten minutes
·     discussion by telephone with Ms Fiona McGlade, Mr Gallegos' ex-girlfriend, a victim of his offending behaviour and the mother of his youngest male child. The interview was held on 23rd October 2000 and its duration approximately 55 minutes
·     discussion by telephone with Ms Roxana Gonzalez, Mr Gallegos' ex-wife, a victim of his prior offending behaviour and the mother of his eldest male child. The interview was held on 24th October 2000 and its duration approximately 35 minutes
·     discussions with Ms Lisa Hewitt, Community Corrections Officer, Maddington Community Based Services. Ms Hewitt is Mr Gallegos' Parole Order supervisor.
·     review of relevant documentation forwarded from the Australian Government Solicitor including, Ms McGlade's Victim Impact Statement, Transcript of Court Proceedings dated 8th January 1999, and 9th December 1996, copy of Mr Gallegos' Criminal Record, documentation completed by Mr Graffin, Department of Immigration and Multicultural Affairs related to his interviews with Mr Gallegos, Ms McGlade and Ms Gonzalez, a letter from an employer of Mr Gallegos and his own letter describing his commitment to remain out of conflict with the law.
Presentation during interviews
Mr Gallegos is of small stature. He was polite during both interviews however, maintained poor eye contact and presented as 'vague' in relation to details regarding his offending behaviour. He minimised, rationalised and attempted to deflect focus from his offending behaviour by drawing attention to what he perceived as his victims' 'flawed' characteristics. Of considerable concern was his specific inability to 'remember' the most violent elements of his offending. Although he suggested that a prison assault has impacted on his ability to remember it was noted that his 'loss' of memory was inconsistent and only became an issue when discussion focused on his violent behaviour, particularly the use of a weapon during his documented assaults on two women he has had an intimate relationship with.
Social background
Mr Gallegos was born in San Felipe, Chile. He is the eldest child of three children born to parents that remain married. His father is currently unemployed, however, reportedly used to be an employee for a farmer who produced grapes for wine. His father apparently used to have his own horticultural farm producing vegetables 'a long, long time ago'. Mr Gallegos said that he used to work with his father on the farm during school holidays. His mother has a restaurant/hotel business 'one side is food, other side is pub'. He suggested that the business is 'going bad now' as the 'change of government has caused difficulties with employment and people don't go out to eat … drink any more'.
In response to my question regarding general unemployment in Chile, Mr Gallegos sighted (sic) his brother as not having work. When queried further he said 'difficult for everyone'. Mr Gallegos said he was not sure where his sister was employed now however, indicated that both his sister and his brother are unmarried and live with their parents. Mr Gallegos said that he keeps in contact with his family by telephone and indicated that he had spoken to them twice since currently being placed in the Remand Centre (29.06.2000). Mr Gallegos said his family knows about his most recent offending and said, 'they are not happy about it … hope in jail I can learn a lesson'. He indicated that when he stabbed his wife during a visit to his family in Chile, his mother and father 'both said it was wrong what I did … my brother also said it was wrong'.
When asked if his mother and father ever argued and hit each other Mr Gallegos said that his mother and father 'argued like any family' however, 'never in front of us (children)'. He said his father had never hit his mother and his mother never hit his father. Mr Gallegos remembered his father slapping him once because he didn't go to school, however he was adamant that his father never 'hit me' other than on that occasion. According to Mr Gallegos his mother 'hit me a few times if I didn't eat' however, couldn't remember any violent incidents and sighted (sic) an episode that occurred in the Western Australian prison system as the worst time he has been hit.
From information provided by Mr Gallegos in relation to his family background there appears to be no early childhood/adolescent or family history to assist in explaining why Mr Gallegos developed into an adult who committed violent offences of a domestic nature.
In relation to his offending Mr Gallegos said, 'I pay the price very well in jail … I got bashed very badly'. He reported being in the Albany Prison Complex when this occurred. He reported that three inmates 'entered my room (cell)'. He said that they cut his left ear with a knife, bashed his head against a wall and this is why he reportedly has problems with his hearing and suffers headaches. Mr Gallegos said he has been taking prescribed 'pain killers' for ongoing headaches since then, however he could not remember the doctor's name that prescribed them. He said he cannot sleep very well because he 'flash backs' about the incident. He said he couldn't read because of the extent of the headaches or sleep properly. It is possible that Mr Gallegos has suffered a post traumatic response to the incident. He said he saw a doctor while in the community however, did not follow through with the doctor's suggestion that he see a psychiatrist for assistance. Mr Gallegos said that he did not have any money and that nobody told him where to go to obtain assistance.
This was also consistent with how he explained not seeking assistance for his anger management problem after his first conviction for Breach of a Restraining Order and Threat to Kill in 1996. He said, 'nobody told me where to go' or who to ask for assistance. This indicated that Mr Gallegos has not of his own volition sought assistance for his anger management and relationship problems. His contact with counselling and health professionals has apparently only occurred at the direction of his Parole Officer and prison system. It is therefore reasonable to suggest that at this time, there is no evidence to suggest Mr Gallegos will actively seek further assistance to address his violence problems without lawful direction.
Issues related to anger and violence
Information relating to the details of Mr Gallegos' offending behaviour is already well documented and therefore only that information directly related to assessing his risk of recidivism will be reviewed in this report. Of concern was Mr Gallegos' statement to me during both clinical interviews that he 'could not remember stabbing' his wife when they were visiting family in Chile in 1995. He agreed that police had been called and he had been taken away by the police. During the initial interview Mr Gallegos thought he had stabbing (sic) his wife however, became vague when asked to 'tell me what happened'. He was unable to indicate how many times he stabbed her. He said 'I was blind can't remember much'. He remembered being at his family home and the police coming to, 'place me in custody'. When asked where the knife was, that is, where did you get the knife from, Mr Gallegos said 'from the kitchen'. He said he took the knife because he and his wife had been 'arguing a lot'. He could not suggest why he thought he should get a knife from the kitchen because they were arguing. During attempts to elicit information about his assault on his wife Mr Gallegos would avoid eye contact, put his hands up against his forehead and lean his elbows on the table. He would often pause for long periods. He said after one such pause 'I was completely blind'. Several attempts were made to elicit some suggestion of why feeling angry led him to seeking out a knife however, he was unable to provide any explanation as to why feeling angry equalled him going and getting a knife. When asked what he intended to do with the knife he said 'I didn't intend to do anything with the knife'. When asked 'why get the knife at all', Mr Gallegos responded by saying 'I don't know'. Mr Gallegos said he could not remember that he had his baby son (18 months old) in his arms when he stabbed his wife.
During the second interview Mr Gallegos was adamant that he could not remember stabbing his wife at all. When asked how many times he stabbed his wife he said 'I can't remember'. He said 'I can't remember much … police said I hit her with a knife'. It was noted that Mr Gallegos consistently avoided using the word 'stab' or 'stabbed'. When asked what he did remember he said, 'I don't remember much' and repeated that the police 'told me I had hit her with a knife'. He said that he couldn't remember what he was thinking or feeling at the time of assaulting his wife. When asked why he was violent toward his wife Mr Gallegos said, 'she started on me before'. He went on to say 'she stabbed me before'. He acknowledged that he had not told this to anybody previously. When asked why he did not tell anybody before he said 'I don't think to' and then suggested he had told a friend.
When queried why previous reports differ about the number of times he admits to stabbing his wife, somewhere between one and three occasions, Mr Gallegos said 'I am not sure what I said … I got hit on the head (reference to the alleged assault in prison) I don't remember' he further suggested that 'immigration forced me to be interviewed'. He said 'I was on pain killers … not allowed to call solicitor'. Documented (sic) on file with Ministry of Justice suggests he has admitted to stabbed (sic) his wife twice. This is documentation independent to the immigration interview. Ms Hewitt, CCO also reported that an assessment interview by Relationships Australia indicated Mr Gallegos admitted to stabbing his wife three times.
Clinical impressions suggest that Mr Gallegos' memory was 'selective' in nature. Although not remembering his actions he was able to report remembering that he thought his wife was being unfaithful with her cousin, and that his wife 'tormented him'. He was able to provide information about their visit to family and events prior to and after the assault.
Mr Gallegos' ex-wife was surprised to hear her ex-husband could not remember how many times he stabbed her or much about the assault at all, other than what he remembers the police told him. Ms Gonzalez described her ex-husband as a jealous, overly suspicious and controlling man whom she remains wary of. She indicated that he would continually question her about her friendships with others and this worsened after they married. She said he argued and hit her often after their marriage. She said he would most often hit or punch her in the back when she would be walking away. She indicated that his violence never seemed out of control and that even when he stabbed her in Chile, approximately nine times, including in the back and also near her heart, he appeared calm and unemotional.
This was also consistent with Ms McGlade's report of Mr Gallegos' behaviour and presentation during his assault on her. She also described an increase in his inappropriate behaviour as their relationship progressed. She indicated he attempted to isolate her from her other friends, 'turned up' when he was aware she wanted to 'chat' or 'catch up' with other friends over dinner or coffee. She noted he would sit outside her house in his motor vehicle and often watch her house. She said that his behaviour was confusing as at times he could seem very nice and on other occasions very suspicious, argumentative and manipulating. She said if they argued over something he would 'destroy' something he had given her, for example, throw a bunch of flowers on the floor and stamp on them.
She said that she felt 'stalked' by him prior to his physical assault on her. She indicated that during the assault he appeared controlled in his actions. He hit her repeatedly on the breasts and chest area and kicked her in the back. She said that when she thought it was over and he had finished assaulting her he then went into her kitchen and produced a knife. She said he threatened her with the knife, holding it in front of her stomach but did not actually inflict a physical wound with it. Ms McGlade was six months pregnant at the time of the assault. She indicated that she found Mr Gallegos' actions even more concerning given that he had asked her previously if she 'bruised easily' and also later said that he was sorry he had hit her around the breasts as he knew she was frightened of developing breast cancer like other family members. She thought this indicated possible premeditated behaviour on his part, which is not unreasonable.
In relation to that offence Mr Gallegos acknowledged 'I went through the window and I remember punching her a few times' however, he could not remember going to get the knife. According to Mr Gallegos he punched Ms McGlade because she told him her 'ex-boyfriend couldn't give her a baby … and her ex-boyfriend's mother suggested it would be good if she could have a grandson'.
Mr Gallegos said that he was 'desperate' to be part of their baby's life. He also acknowledged that Ms McGlade might have lost the baby that he so 'desperately' want (sic) to be a part of because of his actions, however, he said he was not thinking logically as he was so angry. His reported behaviour during the assault, for example, his ability to control his use of the knife and his systematically beating Ms McGlade in the top area of her body, provides some evidence to suggest that his violence was controlled. Mr Gallegos minimised the effect of his offending on his vicitm by saying that he didn't believe Ms McGlade was 'frightened' of him.
Mr Gallegos' behaviour as reported by his victims, supported by the documentation held by the Ministry of Justice, and combined with the clinical impressions from interviews, indicate that his behaviour is consistent with perpetrators of domestic abuse. He attempts to make others and his victims believe that their behaviour or actions are the 'cause' of the violence (Rowan, 1985), for example, accusations of infidelity, and suggestions that they are emotionally unstable. He indicated his victims 'tormented' him with their behaviour. His acts of aggression are alternated with acts of 'kindness' and his intimidating and demanding and aggressive behaviour increasing in intensity over time (Gott, 1995).
Mr Gallegos presented as being overly suspicious and mistrustful of his female partners. When my observations were relayed to him he acknowledged that he is 'mistrustful' and that he thought he learnt this from his father. He went on to explain   that his father's friends mostly became absent when his father 'lost money' and his own farm. It remained however, unclear as to precisely why Mr Gallegos' overly suspicious and mistrustful behaviour would manifest itself within his intimate relationships.
Treatment issues
Mr Gallegos has participated in two Skills Training in (sic) Aggression Control Programmes, one while in custody in Wooroloo Prison and the other during his short release in the community on a Parole Order. I asked him to tell me about the course he attended while on Parole and he said, 'it was to control the anger … how to approach people … (long pause) don't get violent when you are angry … you can get angry but don't get upset … control the violent (sic)'. When asked how he learnt to control his anger he responded by saying, 'think first … think deeply about consequences for other people, myself … family'. I encouraged him to continue and he said, 'I am sorry my memory not good … bad memory … I learnt a lot of things … hard for me to say but I learnt a lot things … walk away … wait next day (sic)'. He then paused for a considerable period and appeared to be thinking before further responding with, 'sorry I do not want to do what I did ever ever again'. He said during interview '… to be honest I don't remember much about I learnt (sic). I learnt many things but I can't remember'.
Mr Gallegos' responses suggest that he might be able to understand the concepts and strategies most commonly suggested to utilise to reduce feelings of stress and tension. These strategies, however, are only likely to be useful if an individual is able to recognise the early cues and factors associated with their building of anger and if they are then motivated to avoid aggression. During interview he could provide no evidence of an understanding of what factors are precursors to his developing feelings of anger and ultimately behaving violently.
Mr Gallegos was unable to provide me with any information that suggested that he had any insight into the underlying issues related to his violent behaviour. He failed to indicate an understanding or acknowledgment of the extent and intensity of his past behaviour and indicated no genuine empathy for his victims. He minimised, rationalised and justified his violence by attempting to deflect focus onto his victims and their alleged 'flawed' characteristics and behaviours that 'tormented' him.
Although Mr Gallegos has reportedly attended two assessment/counselling sessions with Relationships Australia to address his offending, however, it is reasonable to suggest that as he can't remember his actions, thought or feelings in any detail prior to or during his offending counselling in unlikely to be beneficial. Domestic violence treatment programmes are predominantly based on the Duluth model of intervention. This model has been acknowledged internationally as an appropriate treatment intervention. It requires the perpetrator to be able to remember and acknowledge their behaviour in order to understand the factors associated with their offending. These include having insight into their cognitions, feelings and behaviours prior to offending and to also be able to note and acknowledge any physiological changes that might assist in recognising potential for aggression. It requires acknowledgment of responsibility for behaviour. Further, treatment is more likely to have a positive impact if the individual is motivated to change. As Mr Gallegos continues to minimise and justify his behaviour it is reasonable to suggest that his genuine desire and motivation to change is currently questionable.
Indication of minimisation of his behaviour was evident in his acknowledging only that he 'spat on' his victim and then only after she 'poured a glass of water over my head'. He said he responded in that way because she had been 'threatening me at work'. He denied threatening to kill her. When asked why he didn't merely leave the nightclub and ignore her he responded by shrugging his shoulders.
Mr Gallegos said it was ' bad to hit women … no reason to hit women but women shouldn't hit man … my wife hit me first when we were working as cleaner. She started hitting me first … I say I didn't want to hit you but you started it first. My son says she is hitting him a lot'. Further, Mr Gallegos said 'feel because I went through Family Court I has (sic) more problems'. This suggested he has an ongoing focus on other explanations for his problems rather than the violence he perpetrated.
Mr Gallegos said, 'there is a lot of domestic violence in Chile'. After pausing for some time he said 'know it's not right … saw on television that women putting a restraining order … and then violence gets worse because men get more angry because they can't see their children'.
Risk of recidivism
The Spousal Assault Risk Assessment (SARA) is a culturally free screening tool that has been devised to assess the risk of domestically violent reoffending. The tool has been developed with recognition of recent research that indicates that a judgement related to risk of reoffending requires that actuarial data, psychological and psychiatric issues, clinical impression and victim experience need to be considered in order for a valid judgement to be made. Utilising the SARA Mr Gallegos is considered to represent a high risk of reoffending. Critical items that increase his risk are his use of a weapon, prior breach of a Restraining Order and continued minimisation and justification of his re-offending.
Issues related to impact on children
Mr Gallegos indicated that he did not want to return to Chile because 'I am very close to my son … very important for him to have me here … we were very close I see him once a week like Saturday or Sunday' while on Parole. Mr Gallegos impressed as genuine in his desire to remain in contact with his children. There is no evidence to suggest that Mr Gallegos has behaved in a directly violent manner towards his children. He, however, stabbed his eldest son's mother while he was reportedly holding his son, then 18 months old. A factor which is concerning particularly as he suggests he 'can't remember' and violently assaulted his second child's mother while she was six months pregnant. There is an abundance of research that indicates that the effects of children observing domestic violence is long term. They have tended to feel worthless, and often develop mistrusting relationships. Small children might experience nightmares, insomnia and bed wetting. It is noted that Ms Gonzalez indicated her son was experiencing nightmares and behaving aggressively toward her. Research has found that boy children often act out showing aggression and violent behaviour (Goodman & Rosenberg, 1991, p.97; Graham-Bermann & Levendosky 1998 p.59-60).
Summary
Mr Gallegos presented as a man who is experiencing difficulty accepting full responsibility for his violent behaviour. He attempts to deflect focus from his inappropriate behaviour by drawing attention to what he perceives as his victims' emotional problems and 'flawed' characteristics. He impressed as suffering from a personality style characterised by suspicion and mistrust when in an intimate relationship. In response he has then behaved in a controlled violent manner.
Mr Gallegos impressed as having a 'selective' memory problem. He appeared to have no insight into the factors that motivate his violent offending. I believe it is reasonable to suggest that some answers to assist in explaining his violent behaviour would probably be found in his earlier developmental years, however, no information was forthcoming from Mr Gallegos at this time.
From available documentation, coupled with clinical impressions from interview and supported by research Mr Gallegos is considered to currently be at high risk of reoffending."

In her oral evidence, Ms Fowler elaborated on her professional experience. She confirmed that she had been in private practice since 1995 but that she had actually been practising since 1987, predominantly in the area of forensic psychology. Ms Fowler was questioned about the contents of her report and elaborated somewhat thereon but, given the comprehensive nature of the report itself, it is not necessary or useful to recount her evidence here.
The Legislation
The relevant provisions of the Act are as follows:
"200     Deportation of certain non-citizens
The Minister may order the deportation of a non-citizen to whom this Division applies.
201Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes
Where:
(a)     a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)     when the offence was committed the person was a non-citizen who:
(i)        had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
(ii)       …; and
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.
…
499Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A)     A person or body must comply with a direction under subsection (1).
…".

The respondent has given a relevant direction under s499(1) of the Act – namely, "General Direction – Criminal Deportation – No 9" ("the Direction") – with effect from 21 December 1998. The relevant contents of the Direction will be referred to below.
The Application of the Act and the Direction to the Circumstances of the Applicant's Case
There is no dispute that the conditions specified in paras (a), b(i) and (c) of s201 of the Act are satisfied in the circumstances of the applicant's case, and the Tribunal so finds. Accordingly, s200 of the Act applies to the applicant and, under that section, the respondent is authorised to order the deportation of the applicant.
The Preamble to the Direction states:
"This General Direction provides guidance to decision makers in considering the making of deportation decisions under sections 200 and 201 of the Migration Act (the Act).
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to deport from Australia those non-citizens who have abused the privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it.
…".

Paragraph 4 of the Direction states:

"The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community."

Paragraphs 5, 6 and 7 of the Direction refer to the primary and other considerations to which regard should be had in deciding whether or not to exercise the discretionary power to order the deportation of a non-citizen pursuant to s200 of the Act. Those paragraphs state as follows:

"5. The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations. The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7). A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
6. In making a decision whether or not to deport a non-citizen, there are two primary considerations:
(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.

7.In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are:
(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
(b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation."

A THE PRIMARY CONSIDERATIONS

The Expectations of the Australian Community
Paragraph 8 of the Direction states:
"… There are two aspects to community expectations:
(a)the expectation that the community will be protected and not put at risk;
and
(b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia."

Protection of the Australian Community

As regards the protection of the Australian community, para 9 of the Direction states:
"It is the Government's view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government's view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community …".

Paragraph 10 then specifies three factors which, in the Government's view, are "relevant to an assessment of the level of risk to the community and the need for its protection", namely:

"(a) the seriousness and nature of the crime;
(b) the risk of recidivism; and
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons."

These relevant factors will now be considered.
(a) The seriousness and nature of the criminal offences

Paragraph 11 of the Direction lists examples of offences which are considered by the Government to be "very serious". These include:
(e) murder, manslaughter, assault or any other form of violence against persons;
…
(l) any other crimes involving violence or the threat of violence;

Such crimes are of special concern to the welfare and safety of the Australian community."

Paragraph 12 of the Direction states:

"It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community."

On 8 January 1999 the applicant was convicted of the offence of aggravated burglary for which he was sentenced to imprisonment for a period of 3 years and 6 months, and of the offence of assault occasioning bodily harm for which he was sentenced to imprisonment for a period of 2 years to be served concurrently with the former sentence. Those offences are the offences which made the applicant liable to deportation, and on the basis of which the deportation order was made against him on 15 June 2000, pursuant to ss200 and 201 of the Act. On the same date the applicant was also convicted of assault for which he was sentenced to imprisonment for a period of 9 months to be served concurrently with the abovementioned sentences. The Tribunal notes that the offence of assault occasioning bodily harm clearly falls within the category of offences referred to in subpara (e) of para 11 of the Direction (see para 55 above) which are included in the list of examples of offences which the Government regards as "very serious". The offence of aggravated burglary, while not specifically mentioned in that list of examples, would fall within the broad category of offences referred to in subpara (l) of para 11 of the Direction – namely, "any other crimes involving violence". In any event, the offence of aggravated burglary committed by the applicant was of itself of a very serious nature, as reflected in the substantial sentence of imprisonment for a period of 3 years and 6 months that was imposed therefor. Furthermore, the serious nature of those offences was also reflected in the sentencing remarks of Blaxell DCJ when sentencing the applicant (see para 7 above). His Honour described the aggravated burglary as "a home invasion of the type that terrorises the victim" and, as regards the assault occasioning bodily harm, after referring to the physical injuries inflicted on the victim (Fiona McGlade) he added that a "very aggravating" circumstance was that the applicant attacked Ms McGlade "in a very vicious manner" knowing that she was pregnant and "without regard to the safety of the foetus". These offences, which involved a home invasion late at night and the causing of terror to, and the carrying out of a vicious attack and the infliction of physical injuries on, a woman who the applicant knew to be pregnant and who was alone in the house, are not only very serious in themselves but are also of a kind that are especially repugnant to the general Australian community.
Mr Paternoster (for the applicant) submitted that, in assessing the seriousness of those offences, regard must be had to their effect on the victim and that the seriousness of those offences was mitigated by the fact that Ms McGlade subsequently agreed to meet with the applicant before he was imprisoned and wrote to him frequently while he was in prison, thereby maintaining the relationship between them and involving him in the birth of their son, Louis. The Tribunal does not accept that submission. Instead, the Tribunal accepts the evidence of Ms McGlade herself and the submission of Ms Thipthorp (for the respondent) that when Ms McGlade met with the applicant and wrote to him she made it clear that their intimate relationship was over and that her letters to him were merely intended to be supportive and helpful to him in his difficult circumstances in prison and to allow him to share to some extent in the experience of her pregnancy and the subsequent birth and development of their child. In the Tribunal's opinion Ms McGlade abovementioned behaviour towards the applicant subsequent to the relevant offences he committed against her in no way mitigates the seriousness of those offences, but rather merely reflects her kindness and generosity of spirit. In the Tribunal's opinion there are no significant mitigating circumstances associated with the commission of those offences by the applicant.
In the Tribunal's assessment, this factor – namely the seriousness and nature of the criminal offences – weighs very heavily against the applicant.
(b) The risk of recidivism
Paragraph 13 of the Direction states:
""It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism."

In the present case the applicant's previous criminal history in Australia reveals that, prior to his committing the abovementioned offences against Ms McGlade in October 1998, he was convicted by a magistrate of the offences of breach of a restraint order and threats to kill against his former wife, Roxana Gonzalez, in December 1996. As regards the latter offence, the Tribunal notes that the applicant had pleaded guilty and was sentenced to 18 months imprisonment but that, on appeal, his conviction was quashed and the sentence was set aside on the ground that, by reason of s338B of the Criminal Code (WA), the magistrate had no jurisdiction to deal summarily with a threat to kill. Furthermore, it is common ground that in 1995 the applicant stabbed Ms Gonzalez in the course of a domestic argument when they were on holiday in Chile, and that she was hospitalised as a result. The Tribunal accepts Ms Thipthorp's submission that the applicant's previous general conduct and criminal history demonstrate a clear pattern of severe domestic violence behaviour over a considerable period of time. Mr Paternoster submitted that both the seriousness of the applicant's offences and the risk of recidivism in his case were mitigated because the offences occurred in a "narrow area" – namely, "in specific circumstances where he was in a close relationship" – and that he did not pose a threat to the wider community. In the Tribunal's opinion, that submission has no merit. Domestic violence, by definition, is limited to domestic relationships but that limitation does not detract from the seriousness of offences involved in the perpetration of domestic violence; nor does it necessarily detract from the risk of recidivism. A propensity to engage in domestic violence in itself would be indicative of a high risk of recidivism – albeit limited to the kinds of offences necessarily associated with domestic violence, but nonetheless recidivism.

The Tribunal was presented with expert evidence in the form of a comprehensive psychological report, dated 25 October 2000, prepared by Ms H Fowler (Exhibit R8) (set out in para 47 above) which concludes that there is a high risk of the applicant's reoffending. Ms Fowler reiterated that view, and the reasons for it, in her oral evidence and adhered to that view without qualification, despite vigorous cross-examination by Mr Paternoster. A crucial feature of the applicant's presentation which, in Ms Fowler's opinion, indicated that there was a high risk that he will reoffend was his "continued minimisation and justification of his offending". That feature was also referred to by Ms L Hewitt, the applicant's parole officer, in her report of 17 October 2000 (Exhibit R4) (see para 45 above), in which she stated that it appeared that the applicant "had not altered in his attitude towards his offending behaviour" and, instead, appeared to "justify his violence towards his ex-partner" both on the basis of her alleged manipulation and provocation of him and on cultural grounds.
In his oral evidence the applicant made a number of statements, in relation to the offences against Ms Gonzalez and Ms McGlade of which he was convicted, which are at variance with the facts as presented or admitted on his behalf at the time of his conviction. For instance, as regards the offence of threatening to kill Ms Gonzalez of which he was convicted on 9 December 1996, in his oral evidence to the Tribunal (see para 24 above) the applicant denied that he had ever threatened to kill Ms Gonzalez. The Tribunal notes that on that occasion the applicant, who was represented by counsel, pleaded guilty to that offence, and his counsel acknowledged that the applicant had threatened to kill Ms Gonzalez and merely made a plea in mitigation. (T11, pp 119-120, 125-126) Furthermore, Ms Gonzalez gave sworn evidence to the Tribunal that the applicant, on the occasion in question, told her that he was going to kill her (see para 35 above). As regards offences against Ms McGlade, the applicant stated, during cross-examination, that in the incident at the nightclub in the evening of 25 October 1998 which gave rise to the conviction of assault, he had placed on her face a serviette containing a mixture of tomato sauce, mayonnaise and Coca Cola (see para 25 above), whereas in the sentencing proceedings before Blaxell DCJ the applicant, through his counsel, admitted that he had wiped her face with a tissue containing faeces and that was recited as a fact by Blaxell DCJ prior to passing sentence. (T11, pp 101, 103, 105, 111) Ms McGlade, in her oral evidence to the Tribunal, confirmed that the applicant had wiped faeces across her face (see para 40 above). In relation to the offences of aggravated burglary and assault occasioning bodily harm which occurred at Ms McGlade's home later that night, the applicant denied that he had threatened Ms McGlade with a knife and said that it was instead a "big black spoon" (see para 26 above), whereas in the sentencing proceedings before Blaxell DCJ counsel for the applicant did not dispute Ms McGlade's allegation in her Victim Impact Statement that the applicant threatened her with a knife during that incident, and that allegation was accepted by Blaxell DCJ in his remarks prior to passing sentence. (T11, pp 101, 109, 112) Ms McGlade, in her oral evidence to the Tribunal, said that during the abovementioned incident the applicant got a knife from the kitchen and held it to her (see para 40 above).
As regards the discrepancies between the applicant's evidence to the Tribunal, on the one hand, and his previous admissions in the abovementioned sentencing proceedings and the evidence of Ms Gonzalez and Ms McGlade, on the other, as outlined in the preceding paragraph, the Tribunal has no hesitation in preferring the evidence of Ms Gonzalez and Ms McGlade to that of the applicant. The Tribunal does not regard the applicant as a witness of truth and has grave doubts about the credibility of his evidence generally. Those doubts extend to the applicant's expression of remorse regarding his violent attack on Ms McGlade (see para 18 above) and his evidence regarding his present attitude towards violence and the lessons he has learnt from anger management programs and his interest in undertaking further such programs (see para 21 above). The Tribunal notes that similar doubts about the applicant's credibility regarding those matters were expressed by Ms Fowler.
On the other hand, the Tribunal notes, in the applicant's favour, that immediately following his attack on Ms McGlade he quietly submitted to the police and pleaded guilty to the charges at the earliest opportunity. The Tribunal also notes, in the applicant's favour, that, in terms of rehabilitation, he has successfully completed two Ministry of Justice programs in Skills Training for Aggression Control, one while he was in prison in November/December 1999, the other while he was on parole (completion of that program being a condition of his parole order). The Tribunal further notes the evidence of Mr Mammana and Mr Bickham regarding the applicant's very good employment record in Australia and "strong work ethic", especially at Mr Mammana's garden centre, and accepts that the applicant, if allowed to remain in Australia, would be likely to make a positive contribution to the community in relation to his employment performance.

Having regard to all of the abovementioned considerations, however, it is the Tribunal's assessment – based largely on the report of Ms Fowler which the Tribunal regards as very thorough and well reasoned – that the risk of recidivism in relation to offences associated with domestic violence remains high in the applicant's case.

(c)The likelihood that deportation of the applicant would prevent or discourage the commission of like offences by other persons

The Tribunal accepts that the deportation of the applicant, in addition to the sentences of imprisonment that have already been imposed upon him, would send a clear message to non-citizens, and to the community generally, that crimes of violence – including domestic violence – are unacceptable and will not be tolerated, and would, accordingly, be likely to deter non-citizens, in particular, from engaging in such conduct.
Community expectation that non-citizen perpetrators of crimes abhorrent to the community will be removed from Australia
Paragraph 15 of the Direction states:
"Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences."

In assessing the likely attitude of the Australian community as regards the applicant's being allowed to remain in, or being removed from, Australia it is appropriate, in the Tribunal's opinion, to impute to the hypothetical reasonable member of the community knowledge, not only of the applicant's deportable offences (namely, the offences committed against Ms McGlade on 25 October 1998 and of which he was convicted on 8 January 1999), but also of his other relevant circumstances, including his conduct and offences in relation to Ms Gonzalez both in Chile and in Australia, his relationship with his 2 children who were born and live in Australia, his employment record and prospects in Australia, the extent of his present and prospective rehabilitation and hardship considerations.

It is the assessment of the Tribunal that, having regard to all the relevant circumstances of the applicant's case, the likely attitude of the hypothetical reasonable and relevantly informed member of the Australian community would be that the vicious and terrifying attack, following a home invasion late at night, that he perpetrated on Ms McGlade – a defenceless woman who was alone in her home and who he knew to be pregnant – was so abhorrent and intolerable, and involved conduct so completely unacceptable in Australian society, that the applicant should not be allowed to remain in Australia – especially given that he has been professionally assessed as being likely to continue to engage in domestic violence in the future.
Assessment of the 1st Primary Consideration

In the Tribunal's opinion, having regard to all of the relevant aspects and factors relating to the 1st primary consideration – namely, the expectations of the Australian community – which have been set out in paras 53-67 above, that consideration weighs very heavily against the applicant's being allowed to remain in Australia.
The Best Interests of the Child or Children
This primary consideration is relevant in the present case because the applicant has 2 children under the age of 18 years who were born and live in Australia – namely, Braulio who was born on 14 July 1993 and Louis who was born on 17 April 1999.
Paragraph 18 of the Direction states that:
"in general, the starting point for any consideration of the best interests of the child would be that the child's best interests will be served if the child remains with its parents."

Where there are 2 or more relevant children the best interests of each child should, according to para 17 of the Direction, be considered separately and also together with each other and with other members of the family. Paragraph 17 of the Direction goes on to state:

"It should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate that the potential deportee should not be deported, but that the best interests of another child may point towards deportation."

Paragraphs 19 and 20 of the Direction list various relevant considerations which should be taken into account in assessing whether deportation would, or would not, be in the best interests of the child or children.

As regards Braulio – who is the son of the applicant and Ms Gonzalez – the evidence before the Tribunal clearly indicates that the applicant has continued to have a significant and positive relationship with Braulio since he and Ms Gonzalez separated in February 1995. That relationship involved the applicant having access to Braulio on weekends, pursuant to an order of the Family Court, until he was taken into custody in January 1999. That weekend access resumed when the applicant was released on parole in early March 2000 but ceased again when he was detained in immigration custody in late June 2000. During the applicant's time in custody he has maintained his relationship with Braulio by occasionally writing letters to him. The Tribunal accepts the applicant's evidence that he loves Braulio and wishes to continue to have personal access to him and to develop their relationship. On the other hand, the Tribunal also accepts the evidence of Ms Gonzalez, with whom Braulio lives, that Braulio is a "very happy child" and asks after the applicant only "once in a while", and that the applicant has not made a very substantial financial contribution to Braulio's upbringing since their separation and divorce. The Tribunal notes that no objective expert evidence as to the likely effect of the applicant's removal from Australia on Braulio's emotional, psychological and physical wellbeing has been presented to it.
As regards Louis – who is the son of the applicant and Ms McGlade and who has lived with Ms McGlade in Melbourne since his birth in April 1999 – it is fair to say that the applicant has, to date, not attempted to establish any relationship between them. As regards the future, the applicant's evidence was that he intended to leave Ms McGlade and Louis "to live their own lives". Ms McGlade stated in evidence that, now that she was fully aware of the applicant's violent behaviour towards both her and Ms Gonzalez, she did not want the applicant to have any future contact with herself or with Louis in the interests of their safety.
Having regard to all the circumstances the Tribunal's assessment is that, although Braulio's emotional, psychological and physical wellbeing would not necessarily be significantly adversely affected if the applicant were to be removed from Australia, it would nevertheless, on balance, be in Braulio's best interests if the applicant were allowed to remain in Australia, given the nature and duration of their existing relationship and the prospective development of that relationship. On the other hand, there is no evidence to suggest that it would necessarily be in Louis' best interests if the applicant were to remain in Australia; on the contrary, it may well be contrary to Louis' best interests, as suggested by Ms McGlade.
Assessment of the 2nd Primary Consideration
The assessment of the Tribunal is that, primarily by reason of the existing and prospective relationship between the applicant and his son, Braulio, the 2nd primary consideration – namely, the best interests of the child or children – weighs in favour of the applicant's being allowed to remain in Australia – but not heavily.
B. OTHER RELEVANT CONSIDERATIONS

Paragraph 21 of the Direction states that it is appropriate that other relevant considerations – including the degree of hardship which may be suffered by the potential deportee and by any Australian citizens or permanent residents (including members of the potential deportee's family, other than his/her children) as a result of his/her deportation – should be given less weight than the primary considerations.
As regards the degree of hardship which may be suffered by the deportee, para 22 of the Direction lists various factors to be considered. First, the applicant does not, on the evidence presented to the Tribunal, presently have a marital or de facto relationship with an Australian citizen or Australian resident. Secondly, the applicant did not spend his formative years in Australia, having first arrived here from Chile in July 1990 when he was aged 21 years 9 months. The applicant continues to have strong family ties with Chile, the likely country of return, in that his parents and siblings still live there. As regards the applicant's ties with Australia, Ms Gonzalez and Ms McGlade, the mothers of his 2 children, and the children themselves, reside here but neither Ms Gonzalez nor Ms McGlade wishes to have any further relationship with the applicant. The applicant does, however, have significant social and employment ties in Australia in the form of Mr Mammana and other friends in the Chilean community together with his employment in Mr Mammana's garden centre. Furthermore the Tribunal is prepared to accept, on the basis of the applicant's evidence, that his employment prospects and his financial prospects generally in Chile would not be as favourable as they are in Australia and that, accordingly, he would suffer relative hardship in those respects if he were deported to Chile. In addition the Tribunal accepts that, if deported to Chile, the applicant would suffer emotional hardship by reason of being separated from his son, Braulio.
As regards the degree of hardship which may be suffered by any Australian citizens or permanent residents, para 24 of the Direction lists various factors to be considered. As previously mentioned, the applicant apparently does not presently have a marital or de facto partner and, as regards his ex-partners, Ms Gonzalez and Ms MsGlade, neither of them would suffer hardship if the applicant were deported. The Tribunal is prepared to accept that, as regards the applicant's friends in Australia, some hardship in the sense of loss of social contact with the applicant would be suffered by them if the applicant were deported and, in the case of Mr Mammana in particular, he would suffer the loss of not only a family friend but also a very valued employee.
Mr Paternoster also asked the Tribunal to take into account the adverse effects on the applicant of the physical attack on him by other prisoners at Albany Prison on 14 August 1999 when he was in custody there. The Tribunal heard evidence from the applicant regarding those effects (see para 20 above), but no recent medical evidence was provided by the applicant by way of confirmation. The only relevant objective evidence provided by the applicant comprises Ministry of Justice documents referring to the injuries sustained by the applicant in that attack and the symptoms of which he complained in the period of 2-3 weeks immediately thereafter together with the medication that was prescribed for him. The most recent of those Ministry of Justice documents is a brief report by Dr G Hee, dated 2 February 2000, merely confirming that a traumatic perforation of the left tympanic membrane sustained by the applicant in August 1999 had healed. As regards the applicant's evidence that, after the abovementioned incident, he experienced, inter alia, dizziness, nausea, headache, an inability to concentrate, and left ear pain and hearing loss, the Tribunal notes that those symptoms were apparently not severe enough to prevent the applicant from actively participating in and completing the Skills Training for Aggression Control program at Wooroloo Prison Farm which comprised 10 sessions over the period from 30 November 1999 to 14 December 1999 (see para 21 above). In the absence of recent medical evidence regarding any ongoing adverse effects on the applicant of the abovementioned incident on 14 August 1999, the Tribunal is not prepared to attach significant weight to that matter.
Assessment of the Other Relevant Considerations
The assessment of the Tribunal is that the applicant would suffer significant personal hardship, especially in relation to his loss of physical contact with his son, Braulio, and his likely less favourable employment and financial circumstances, if he were deported to Chile. Some hardship would also be caused thereby to other Australian citizens or permanent residents, notably Mr Mammana. Those considerations, on the whole, weigh in favour of the applicant's being allowed to stay in Australia.
OVERALL ASSESSMENT OF THE PRIMARY CONSIDERATIONS AND OTHER CONSIDERATIONS
The overall assessment of the Tribunal is that:

the 1st primary consideration – namely, the expectations of the Australian community – weighs very heavily against the applicant's being allowed to stay in Australia and in favour of his deportation;
the 2nd primary consideration – namely, the best interests of the child or children – weighs in favour of the applicant's being allowed to stay in Australia and against his deportation – but not heavily; and
the other relevant considerations, on the whole, weigh in favour of the applicant's being allowed to stay in Australia and against his deportation.

Conclusion

Having regard to all relevant consideration in this matter, and especially to the two primary considerations to which, in accordance with the Direction, the greatest weight has been given, the Tribunal concludes that, on balance, those considerations weigh against the applicant's being allowed to stay in Australia and in favour of his deportation. The Tribunal has reached that conclusion because, in its assessment, the 1st primary consideration – namely, the expectations of the Australian community, including the various aspects and factors that, as stated in the Direction, are related thereto – weighs so heavily in favour of the applicant's deportation as clearly to outweigh the 2nd primary consideration – namely, the best interests of the child or children – and the other relevant considerations (to which, in accordance with the Direction, less weight has been given) which weigh in favour of the applicant's being allowed to stay in Australia.
Decision
For the above reasons the decision under review is affirmed.

I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed:
................................(sgd S Railton)................................
Associate
Dates of Hearing  26 & 27 October 2000 and 21 December 2000
Date of Decision  21 December 2000
Counsel for the Applicant        Mr A Paternoster
Solicitor for the Applicant         Messrs Leonard Cohen & Co
Counsel for the Respondent    Ms L Thipthorp
Solicitor for the Respondent    Australian Government Solicitor