Gurran and Minister for Immigration and Multicultural Affairs
[2000] AATA 166
•25 February 2000
DECISION AND REASONS FOR DECISION [2000] AATA 166
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q99/1151
GENERAL ADMINISTRATIVE DIVISION )
Re PAUL THOMAS GURRAN
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date25 February 2000
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant PAUL THOMAS GURRAN be allowed to remain in Australia.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
DEPORTATION – Section 200 of the Migration Act 1958 – prospects of rehabilitation – best interests of the child.
Migration act 1958 s 2000
REASONS FOR DECISION
25 February 2000 Deputy President DP Breen, Presidential Member
The decision under review in this matter is dated 23 September 1999. It was made by one Andrew Edgar Metcalfe, a Delegate of the Minister for Immigration and Multicultural Affairs pursuant to the deportation order powers bestowed upon the Minister by Section 200 of the Migration Act 1958 (Cth)(as amended).
Paul Thomas Gurran is a non-citizen who arrived in Australia on 1 April 1989. He was born in New Zealand on 2 July 1974; thus, he was 14 years of age upon taking up permanent residency in Australia. Mr Gurran was convicted in the Southport (Queensland) District Court on 28 September 1998 of an offence of robbery whilst armed and in company. The evidence discloses that the offence occurred on 29 November 1997. Mr Gurran pleaded guilty. I shall shortly record in these reasons the sentencing remarks of the Judge who constituted the Court, namely Senior Judge Hanger. The Judge imposed a sentence of imprisonment for 4 years with an over-riding recommendation that Mr Gurran be considered for parole after serving 15 months.
The decision under review records that "…at the time of commission of the said offence the said Paul Gurran was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand citizen exempt non-citizen, or special category visa holder for less than ten years".
The deportable offence, not surprisingly, is for relevant purposes regarded as a serious offence – that is, robbery with violence in company is itself a very serious offence.
The sentencing remarks of Judge Hanger commence with that very observation. I quote those remarks:
"Now, you have pleaded guilty to a very serious offence. The circumstances, as the Crown have said, are not as serious as many robberies but undoubtedly you caused great concern to the complainant at the time.
The Court must consider the deterrent aspect of any sentence imposed for this type of offence because it is a prevalent type of offence. I must also have regard to your criminal history which contains offences of dishonesty, in particular, stealing in 1994 and subsequently a number of drug offences, not to mention another minor offence.
I have regard to the fact that you have pleaded guilty and apparently indicated your intention to do so at an early stage and that you have Co-operated with the authorities.
I order that you be imprisoned for a period of four years and in view of the mitigating factors which I have just mentioned, including your plea, I order that you be recommended for parole after serving a period of 15 months' imprisonment."It will be seen from the Judge's remarks that the particular incident of robbery of which Mr Gurran was convicted was regarded by the Sentencing Judge, on the concession of the prosecuting authorities, as "not as serious as many robberies…".
As mentioned by the Sentencing Judge, Mr Gurran had earlier convictions including stealing, a drug conviction (possession simpliciter) and convictions in the Magistrates Court for breaches of a probation order and a community services order imposed on him on 11 May 1954 in respect of a conviction of stealing.
The applicant had a further conviction – not a criminal conviction but a conviction under the Vagrants, Gaming and Other Offences Act - based on indecent behaviour in a public place. In his evidence he explained that he was intoxicated at the time and, caught short for a toilet, urinated in public. I take little cognisance of this offence, but overall I find Mr Gurran's criminal history disturbing.
The matter was heard by me in Brisbane on 25 January 2000. I took viva voce evidence from the applicant himself and his defacto wife, Jacie-Lee Whitfield. Mr DC Rangiah of Counsel, instructed by Messrs Nicol Robinson and Halletts appeared for Mr Gurran and Mr A Skoein of Counsel, instructed by Ms B Quayle of the Litigation Section of the Department of Immigration and Multicultural Affairs, appeared for the respondent Minister.
I received in evidence the following documents in addition to the evidence given orally.
Exhibit 1 "T" Documents
Exhibit 2 Statement of Paul Gurran
Exhibit 3 Statement of Jacie Whitfield
Exhibit 4 Statement of employer Paul Everingham dated 4.1.00
Exhibit 5 Bundle of 5 documents –
Prisoner Behaviour Report
Sentence Management Review
Parole/Home Detention Application
Mary Krishnan Report dated 19.7.99
Letter from Brisbane Regional Community Corrections Board
Exhibit 6 Letters from Paul Gurran to Brittany Whitfield
Exhibit 7 Letters from Brittany Whitfield to Paul Gurran
Exhibit 8 Statement from employer – Paul Everingham
Exhibits 4 and 8 were Statements by one Paul Everingham, the owner/manager of a firm named Chess Taylor's Removals. Mr Gurran has worked for that firm since 1 October 1999. He gained this employment after door-knocking around an industrial area in Brisbane. This was the first employment offer he received as a result of the door-knocking exercise but he was later offered four more.
These efforts and the steady employment spanning now a four-month period, together with courses he undertook in prison, and other courses of study he did in the early 1990s, are encouraging signs of a prospect of rehabilitation in this young man. They are factors very much in his favour and together with the longevity of his Australian residence prior to the commission of the deportable offence (8 years), offset to a discernible degree the impact which the circumstances of the deportable offence and the record of his other criminal and anti-social behaviour would otherwise have carried.
Nonetheless, if those factors constituted the only matters to be considered in the case, given the terms of the now extant Ministerial Policy, this would have been an extremely borderline case.
However, I have decided, having regard to all of the evidence, that Mr Gurran should be given another chance and the Tribunal's decision will be that the deportation order be set aside. That, of course, is not the end of the matter as the conviction for the deportable offence will remain forever on his record as well as liability to deportation.
As I have recorded, he has worked for Chess Taylor's Removals since October 1999.
Exhibit 8, a Statement of the owner/manager of that firm, provides considerable support for Mr Gurran and I consider it appropriate to record its terms:
"I, PAUL EVERINGHAM, business manager, of 7 Argon Street, Sumner Park, Queensland state as follows:-
1.I have been the owner of Chess Taylor's Removals since about 1998 and manager for about the seven years prior. I have had to hire and fire many people over the years and have had many people working for me. I was a police officer in the Northern Territory during the 1960's. I believe that I am a good judge of character.
2.Paul Gurran has been employed by me since 1 October 1999. He obtained the position by contacting my business directly. He disclosed that he had been in prison and was on a work release scheme.
3.I am aware that Paul was imprisoned for armed robbery in company.
4.I have provided a reference for Paul dated 4 January 2000, a copy of which is attached and marked 'A'. I believe the contents to be true and correct.
5.Paul is an excellent worker and (apart from his criminal record) I believe him to be a very decent young man. I intend to continue to employ him.
6.I intend to support Paul in obtaining a heavy vehicle drivers' licence. This requires a blood alcohol concentration of 0% while driving.
7.I have never seen Paul drinking alcohol. Drinking is not allowed on work sites. Paul does not join work mates in drinking sessions after work on Friday afternoons."
The attachment marked "A" referred to in 4 above is as follows:
"To whom it may concern
Paul Gurran, has been employed by our Company for the past three and a half months and during that time we have found him to be punctual, hard working, honest and diligent.
Paul has no problems with mixing in with all staff and he is always cheerful even after the most trying of days.
We intend to keep Paul as a valued member of staff and we are currently preparing a training programme and we would expect Paul to take part in the Scheme to increase his skills and make him a more valued member of staff.
I have no hesitation in providing a reference for Paul as he has always conducted himself in an adult mature manner. If need be, I have no aversion to being contacted direct, if this is so desired."
In addition, he has had a relationship with a woman, Jacie-Lee Whitfield, a relationship which has become a defacto partnership. He swore, and she swore, to an intention to marry as soon as possible.
Jacie-Lee Whitfield has a daughter Brittany. Brittany, on the evidence, has never really known her natural father and both Mr Gurran and Ms Whitfield swore, and corroborative evidence in Exhibits 6 and 7 supports their evidence in this respect, that Brittany regards the applicant as her father.
Jacie-Lee Whitfield is a most impressive young woman. Her interests and those of her child are very real matters for consideration upon a construction, and application to a case such as this of the statutory provisions and the terms of the applicable Policy. They are considerations which, under the terms of the Policy, are secondary to the matters of the seriousness of the deportable offence and the interests, and need for protection of the rights of, the Australian community. Nonetheless, in an otherwise borderline case, they attract significant weight.
Ms Whitfield said that she would "just be devastated if Paul were deported". She said that since he was imprisoned she has noticed considerable changes for the better in him and that their relationship had improved considerably as a result. She will not tolerate drug use (and his offence in that regard is a minor one indeed) and she said "I strongly believe that he is not interested in resuming drinking". That claim is, of course, supported by the closing passages of Exhibit 8, Mr Everingham's Statement. Ms Whitfield says of Mr Gurran now that "he seems to have a lot more of a sense of purpose. He is less angry than he used to be before he was imprisoned". She said that they have "shared goals" and they are committed to making a success of their intended marriage.
Ms Whitfield owns her own business, a successful one. She said that if Mr Gurran were deported, taking Brittany and going to New Zealand was not an option for her because of commitments to her own family in this country and commitments to her business associates.
I was most impressed by Jacie-Lee Whitfield. I regard her as clearly an honest, intelligent young woman of considerable personal achievement. I was impressed with her objectivity and thus reposed confidence in her assessment of Mr Gurran and of his obvious efforts to rehabilitate himself.
Overall, but mainly on the basis of her evidence, together with that of Mr Everingham and the work history and the seemingly assured certainty of its continuance into the future, I assess the risk of recidivism as, in this case, acceptable.
For these reasons, I have made the decision to set aside the deportation order.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 25.1.00
Date of Decision 25.2.00
Counsel for the Applicant Mr DC Rangiah
Solicitor for Applicant Messrs Nicol Robinson & Halletts
Counsel for the Respondent Mr A Skoein
Solicitor for the Respondent Ms B Quayle, Departmental Advocate
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