Hui and Minister for Immigration and Multicultural Affairs - [2000] AATA 232

DECISION AND REASONS FOR DECISION [2000] AATA 232

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1236

GENERAL ADMINISTRATIVE DIVISION )

Re LOKENI HUI
Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Dr D Chappell, Deputy President

Date23 March 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

(sgd) Duncan Chappell
  ..............................................
  Dr D Chappell
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – criminal deportation – citizen of New Zealand – entry into Australian at age 30 – convictions for series of assault, malicious wounding and breach of domestic violence order offences – previous consideration for deportation – history of alcohol use and dependency – consideration of seriousness of offences – risk of recidivism assessed to be moderate to high – prospects of rehabilitation assessed to be poor – recent acknowledgment of guilt in relation to domestic violence – consideration of best interests of applicants' children – children assessed to be "at risk" as result of Department of Community Services intervention – hardship to applicant and family – consideration of deterrent message – level of risk of further offending unacceptable to ensure protection of Australian community – best interests of children primary consideration – weighing of factors in favour of deportation.
Migration Act 1958 s200
Lokeni Hui and Minister of Immigration and Multicultural Affairs [1999] AATA 47
Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 985
Epinisa Tiko Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 492
Epinisa Tiko Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCR 583.

REASONS FOR DECISION

23 March 2000 Dr D. Chappell

BACKGROUND
Application

Mr Lokeni Hui, the applicant, seeks review of a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s 200 of the Migration Act 1958 (the Act), to deport him from Australia. The Tribunal's jurisdiction to review that decision is granted by s 501(a) of the Act.
Mr Cameron Jackson, of counsel, represented Mr Hui at the hearing. Mr Hui also appeared in person and gave personal testimony to the Tribunal.
Mr Robert Beech-Jones, of counsel, instructed by Mr Jason Fong, a departmental advocate, represented the respondent. Dr Brent Waters gave evidence on behalf of the respondent.
The Tribunal had before it documents and supplementary documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (T and S documents). The following exhibits were also received into evidence on behalf of the applicant and respondent:
Exhibit No.     Description    Date
A1      Inmate Development Committee sheet listing applicant          Undated
A2      Reference from Captain A.D. Carter, Anglican Chaplain, Corrective Services        11 March 1999
R1      Report by Dr Brent Waters, psychiatrist 18 November 1999
R2      Statement of Ms Hazel Haffenden          16 November 1999

Referral by Federal Court

This matter was remitted by the Federal Court to the Tribunal for reconsideration in July 1999; see Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 985. The reasons for this Federal Court remittal are set out in the decision of Carr J and do not require reconsideration here. The transcript of the earlier hearing, conducted before McMahon DP on 21 January 1999, was included among the documentary evidence before the Tribunal (S1). The transcript shows that at that hearing Mr Hui gave personal testimony, as did his brother, Mr Vase Hui. No other witnesses were called on behalf of either of the parties.
Chronology of Events
The chronology of events which have led to the present proceedings was not a matter of dispute between the parties. That chronology is set out in some detail in Attachment 1. The attachment also contains references to Mr Hui's criminal convictions.
Mr Hui was born in Western Samoa on 1 March 1958. In 1970 or 1971 his family moved to New Zealand and in 1974 he became a New Zealand citizen. He first came to Australia in October 1988 but only stayed for a few days in this country. On 9 June 1990 he returned to Australia and has not departed from the country since that date.
On 4 December 1991 Mr Hui was involved in a violent incident which resulted in his conviction on 22 June 1992 for an offence of malicious wounding. Mr Hui was sentenced by Cloran SM in the Local Court at Bankstown to 15 months imprisonment with an additional term of five months (T4). An appeal by Mr Hui against the severity of this sentence was heard before Mitchelmore J in the New South Wales District Court at Campbelltown on 7 October 1992. Judge Mitchelmore dismissed the appeal, and confirmed Mr Hui's conviction, but in lieu of the period of imprisonment imposed by the stipendiary magistrate he ordered that Mr Hui be imprisoned for a period of nine months with an additional term of three months (T5).
On 4 January 1993 the respondent advised Mr Hui of his possible liability for deportation following this conviction and sentence. However, after a review of the case by the respondent's officials, the Minister's delegate determined that deportation should not be ordered on this occasion. In reaching this decision it was noted that:
… Lokeni Hui's strong family ties with Australia and the low risk of recidivism, taken together, outweigh the serious nature of his crime.
(T13:62 and T13 in general)
On 2 June 1993 Mr Hui acknowledged receipt of a letter confirming this delegate's decision (T15). The letter stated, in part, that it was:
… to confirm the oral warning administered to you today in relation to your conviction for Malicious Wounding at the Bankstown Local Court on 22 June 1992 which rendered you liable to deportation from Australia pursuant to Section 55 of the Migration Act 1958.
The delegate of the Minister for Immigration, Local Government and Ethnic Affairs has decided on this occasion not to order your deportation from Australia on the basis of this conviction, nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered by the Minister or his delegate.
Disregard of this warning will weigh heavily against you if the Minister or his delegate reconsiders your case.
Enclosed with this letter are relevant extracts from the Migration Act on deportation liability, a copy of the Government's Criminal Deportation Policy, and a notice concerning your liability under Section 20 of the Migration Act. I suggest that, in your own interest, you study these papers fully.
(T15:66)
After serving a period of imprisonment in regard to his malicious wounding conviction Mr Hui was released to parole on 2 July 1993 (T43:170). Upon his release he resumed cohabitation with his defacto partner, Ms Jodie Haffenden. Ms Haffenden was also the mother of Mr Hui's first child, Ricky, who was born on 21 September 1992. On 24 September 1993 a domestic violence order (DVO) was granted in the local court at Campbelltown in favour of Ms Haffenden, the magistrate being satisfied that she apprehended violence against her at the hands of Mr Hui (T16:68).
On 21 January 1994 Mr Hui was dealt with by a magistrate in the Local Court at Campbelltown for having breached this DVO. A sentence was deferred for that breach conditionally upon Mr Hui entering into a recognisance to be of good behaviour for a period of three years.
On 11 April 1994 Mr Hui and Ms Haffenden's second child, Vessie, was born. On 15 August 1994 Mr Hui was dealt with by a magistrate in the local court at Liverpool for three offences. Two of these were for breach of the DVO and one was for a further assault upon Ms Haffenden. In respect of the breach of the DVO and the assault, Mr Hui was sentenced to imprisonment for concurrent terms of three months, to commence on 12 August and expire on 11 November 1994. Sentence was deferred in regard to the other DVO breach upon Mr Hui entering into a further recognisance to be of good behaviour for a period of two years (T16:68).
On 28 April 1995 Mr Hui again assaulted Ms Haffenden, thereby breaching the DVO. On 9 May 1995, after a contested hearing before a magistrate in the local court at Campbelltown, Mr Hui was found guilty of having assaulted Ms Haffenden and of having breached the DVO. The magistrate sentenced him to imprisonment for six months for each offence, the second sentence to be served cumulatively upon the first sentence, with a sentence for the assault to precede the sentence for the breach of the DVO (T16:69).
Mr Hui appealed against the severity of the sentences imposed upon him by the magistrate and he was released on bail in September 1995. The sentencing appeal was considered by the District Court of New South Wales at Liverpool on 3 April 1996. Judge Nield reviewed Mr Hui's criminal record as at that date and noted that there had been changes for the better in his life since his release to bail. However, his Honour also said:
But I must take into account a bigger picture than just the changes in the appellant's life. One thing is beyond doubt: this man, when affected by alcohol, assaulted a woman and by doing so breached the domestic violence order. Those offences are serious. I must say that I would have imposed upon the appellant sentences considerably in excess of those imposed by the magistrate. However, the Crown has not appealed against the inadequacy of the sentences and, therefore, I do not proposed to increase them. But I cannot see any reason whatsoever to reduce them.
(T16: 69-70)
Judge Nield dismissed Mr Hui's appeal and he was then imprisoned to serve the balance of the custodial sentence first imposed on 9 May 1995. While in prison Mr Hui was again interviewed by officials of the respondent in order to consider his deportation (see in general T30). In addition to speaking with Mr Hui these officials also interviewed Mr Hui's former defacto partner, Ms Haffenden, and his brother, Mr Vase Hui. A summary of the interview with Ms Haffenden noted that:
Mr Hui's former de facto partner is Ms Jodie Haffenden. Mr Hui has twice been convicted of assault against Ms Haffenden and has been convicted four times of breaching apprehended domestic violence orders taken out by her.
Ms Haffenden was contacted by the departmental case officer by telephone on 13 September 1996 when she advised, among other things, that:

+ she felt that Mr Hui was a good person but that he had a lot of problems;

+the two of them had been separated for one year. Because of Mr Hui's drinking problem he could be violent and argumentative. He also suffered from anxiety attacks;
+the background to the offences for which Mr Hui was presently serving a gaol term was that he had woken her at 3.00 o'clock in the morning wanting sex. He had been drinking. He had pulled her by the hair and assaulted her. She had suffered bruising to the side of her face, loss of hair and a black eye;
+Mr Hui didn't realise things wouldn't work out between them. He was a depressed person who was easily bored and who thought he would never get a job;
+Mr Hui had made all sorts of drunken threats against her in the past. She didn't want him near her. In fact, she had regularly been woken by nightmares as his release date from custody approached;
+if Mr Hui were deported she would feel a lot safer. But she didn't want to cause trouble or suffer possible retribution;
+she believed their children were quite happy at the moment and that they wouldn't miss Mr Hui in the event of his deportation. At the same time, she was willing to explore the question of allowing him access to the children. However, the two of them had been through so much trauma in the past that she had lost trust in him.
(T30: 121-122)

After considering the information which they had gathered, the respondent's officials summarised the factors in favour of deportation and against deportation in the following way:
21FACTORS IN FAVOUR OF DEPORTATION
(i)Mr Hui has four times committed Breach Domestic Violence Order offences subsequent to being formally warned in respect of his deportable offence in Australia. Two of these matters were compounded by assault offences;
(ii)Mr Hui's contribution to Australia over his six year period of residence in Australia has been modest at best. From 1992 he has been sentenced to imprisonment for a total of two years and three months and from 1993 he has not found gainful employment and has been in receipt of unemployment benefits.
22FACTORS AGAINST DEPORTATION
(i)Mr Hui's offences are not of the most serious kind, although, as emphasised by the judge of the District Court of Appeal, the repeated nature of his breaches of apprehended domestic violence orders meant that he risked incurring a sentence approaching the maximum penalty, namely two years imprisonment;
(ii)Mr Hui claims to have no family support network available to him outside Australia. Deportation could reasonably be expected to occasion him inordinate hardship as it would permanently separate him from the brother whom he respects and who is in a position to assist with his rehabilitation;
(iii)Mr Hui has two Australian citizen children to whom he has had fortnightly access in the past. To deport him would deny the children the right to know their father and to be loved and nurtured by him;
(iv)there is seen to be some capacity in Mr Hui, at 38 years of age, to make some future contribution to Australia by way of way of [sic] employment, particularly with the encouragement of his brother.
23In light of the above it is submitted that the factors against you ordering the deportation of Lokeni Hui outweigh those in favour.
(T30: 127)
On 21 October 1996 the Minister's delegate, Mr Mark Anthony Sullivan, accepted the recommendation made not to deport Mr Hui. Mr Sullivan commented at the time that:
I concur on the finest of balances. His repeated offences including against his family are of great concern. Mr Hui should be left in no doubt as to the consequences of further coming to notice.
(T30: 128)
On 5 November 1996 Mr Hui acknowledged receiving a written advice of this decision and of a warning that:
… should you again come to adverse notice of the Department through criminal activity, the fact that you ignored this warning will weigh heavily against you, and the question of your deportation will be seriously reconsidered.
(T32: 132)
On 15 November 1996 Mr Hui was released from prison following the expiration of his sentence (T43:170). Mr Hui again came before the courts in October 1997 when he was sentenced at the Sutherland local court to a fine of $500 and the payment of compensation following a conviction for maliciously destroying and damaging property (T41:153). On 26 March 1998 he again appeared before the Sutherland local court on charges of affray and assault occasioning bodily harm. The offences had been committed on 26 September 1997. Mr Hui was convicted on both charges and sentenced on each to a minimum term of imprisonment of 12 months with an additional term of 12 months (T41:154). He subsequently appealed against the severity of the sentence imposed by the District Court of New South Wales. On 2 June 1998 Bellear J dismissed this appeal, but varied the sentence to a fixed term of 12 months (T36).
In August 1998 Mr Hui was again interviewed by the respondent's officials in regard to his possible deportation (see in general T49). On this occasion the officials summarised the factors in favour of deportation and against deportation in the following way:
FACTORS IN FAVOUR OF DEPORTATION
(i)Two previous warnings which have gone unheeded.
(ii)The seriousness of the deportable offence.
(iii)Mr Hui's lengthy criminal history.
(iv)Mr Hui's negative parole report.
FACTORS AGAINST DEPORTATION
(i)Mr Hui's two children may suffer emotional hardship if he is deported to New Zealand.
(ii)Mr Hui's brother may suffer emotional hardship if he is deported to New Zealand.
(iii)Mr Hui may suffer some hardship if he is deported to New Zealand, especially if this means separation from his children.
In light of the above it is submitted that the factors in favour of you ordering the deportation of Lokeni Hui outweigh those against.
(T49:205)
On 28 September 1998 the Minister's delegate, Mr Sullivan accepted this recommendation. He noted that:
Mr Hui has ignored two warnings.
He continues with crime and refuses to accept it.
Prison record looks fair at best.
The children will be disadvantaged losing contact with father. While this is a primary consideration it is outweighed by the weight of offences, the ignored warnings and the risk of recidivism.
(T49:206)
On 8 October 1998 Mr Hui acknowledged receipt of a copy of the deportation order made against him. On 9 October 1998 Mr Hui lodged an appeal with the Tribunal for a review of this deportation decision (T1). On 18 October 1998 Mr Hui was released following the expiration of his latest custodial sentence. On the next day he was detained in Immigration detention under s 253 of the Act. He subsequently appealed to the Federal Court against this detention order but that appeal was dismissed by O'Connor J on 8 December 1998. On 28 January 1999 the Tribunal affirmed Mr Hui's deportation order: Lokeni Hui and Minister of Immigration and Multicultural Affairs [1999] AATA 47. On 21 July 1999, as already noted, Carr J set aside the Tribunal's decision to affirm Mr Hui's deportation order and remitted the matter back to the Tribunal for reconsideration according to law. On 3 September 1999 Carr J also dismissed Mr Hui's second appeal against the decision made under s 253 of the Act to hold him in immigration detention.
ACT AND POLICY DIRECTION
Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies. A non-Australian citizen who has been in Australia for a period of less than 10 years in aggregate, and has been convicted for an offence for which he or she has been sentenced to imprisonment for not less than one year, is liable to be deported (s 201). It was not a matter of dispute that Mr Hui's convictions made him liable to deportation within the provisions of the Act.
Throughout most of the period which has elapsed since Mr Hui was convicted of the deportable offences, guidance as to the exercise of the discretion under s 200 of the Act is to be found in Australia's deportation policy of 24 December 1992 (T3: "the Policy"). The well-established approach taken by the Tribunal to the Policy was that, in the absence of any good reason to the contrary, it should be taken into account in deportation proceedings. This was the approach which was adopted by the Tribunal in the hearing of Mr Hui's case by McMahon DP in January 1999.
On 21 December 1998 the Minister issued a general direction under s 499 of the Act, entitled "Australia's Criminal Deportation Policy - Criminal Deportation under section 200 of the Migration Act 1958: General Direction - Criminal Deportation - No 9" (the Policy Direction). This Policy Direction was signed by the Minister on the date of its issue and superseded the previous Policy of 24 December 1992. Given this situation, it was not a matter of contention between the parties that it was this new Policy Direction which now required consideration by the Tribunal in addressing the issues involved in Mr Hui's case.
As the Tribunal has already indicated in a number of decisions published since the issue of the new Policy Direction it must, as a matter of law, give this document significant weight. A ministerial direction made under s 499 of the Act stands on a very different footing from general statements of policy as to the exercise of administrative discretion, such as the one formerly providing guidance on deportation matters: Epinisa Tiko Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 492 and Full Federal Court decision Epinisa Tiko Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCR 583.

Like its predecessor, the new Policy Direction makes it clear that the primary purpose of deporting a person from this country is to ensure the safety and welfare of the Australian community, and to exercise a choice on behalf of that community as a whole as to who should be allowed to remain within it (Policy Direction: paragraph 4). The new Policy Direction goes on to provide guidance as to the important factors which should be considered by a decision-maker when determining whether or not a person should be deported. Two primary considerations to which a decision-maker should have due regard are:
(a)The expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and a potential deportee, the best interests of the child or children.
(Policy Direction: paragraph 6)
Both of the primary considerations mentioned in the new Policy Direction have a relevance to Mr Hui's case. More will be said later about the references contained in the Policy Direction to the best interests of the child or children. But first, attention must be given to the guidance contained in the new Policy Direction concerning the way in which decision-makers should have regard to the expectations of the Australian community as a primary consideration. The Policy Direction states (paragraph 8), in part, that:
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 currently commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia
The Policy Direction also states that three factors are relevant to an assessment of the level of risk to the community and the need for its protection:
(a)The seriousness and nature of the crime;
(b)the risk of recidivism;
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
(Policy Direction: paragraph 10)
Given the importance and relevance of the three factors which have just been listed, attention is now turned to the evidence before the Tribunal in relation to each. Following this review the evidence concerning the best interests of the children is examined, together with certain other factors which the Policy Direction indicates require consideration by the Tribunal.
EVIDENCE
Seriousness and Nature of the Crime
As is apparent from the general chronology set out earlier, this is the third occasion upon which Mr Hui has been considered for deportation following his conviction for offences bringing him within the framework of s 200 of the Act. It is also apparent from the information contained in Attachment 1 that Mr Hui's criminal offending at large commenced in 1981 in Western Samoa, and continued during the time that he was resident in New Zealand.
The first offence which led to Mr Hui's consideration for deportation was committed on 4 December 1991. The facts surrounding this offence, which resulted in Mr Hui's conviction of malicious wounding, were described in the following way by Mitchelmore J at the time of his consideration of Mr Hui's appeal against the severity of his sentence:
The facts may be shortly stated.
It was about 9pm on 4 December 1991, the prisoner and co-offender went to a unit at Bankstown. They spoke to the victim. His name is Paul Gregory Jones. The prisoner said to the victim, "I am going to kill you." The prisoner produced a large bladed machete. The prisoner slashed the victim on the left arm causing a severe wound. A struggle ensued, the victim escaped. He escaped by running to the balcony and climbing to the balcony below.
          The alarm was sounded. The police attended. The prisoner was located. The following day he was interviewed by way of electronic recording equipment. The victim received 30 stitches to his upper arm.
          The relevant statement of Paul Jones says as follows in paragraph seven:
"Just after Jodie left the islander turned his back on me and when he turned around again he had a machete in his hands. He said, "we're going to kill you." I said, "What for?" He says, "What's been going on around here?" I said, "I've been watching TV and waiting for Michelle to come home." He said something else then he grabbed me by the shirt and tore it off my back. I fell to the floor and I don't know whether he chopped me while I was standing or as I hit the ground, but he chopped me on the left arm with the machete. I realised he meant business and I saw the extent of my wound. I was terrified of the machete so I grabbed the bean bag on the floor and held it up to protect myself. He kept trying to chop me again with the machete. I wasn't able to get away from him because the Australian guy was standing in the doorway. I saw the balcony door open, I threw the bag at him, ran outside. I jumped over the balcony and somehow swung onto the balcony on the unit second floor below. I was terrified of the machete and just had to get away from it."
There is a statement from a neighbour. Her name is Leanne Birch. She appears to have been in a flat nearby on 4 December at 9.15 when these events occurred. She heard screaming for about three and four minutes. She went outside, she made certain investigations. She noticed:
"The Maori bloke was holding a large knife in his right hand. The knife was about 30 centimetres long and had a blade about four centimetres. The blade was dark, it wasn't shiny, it had blood on it. It had a wood handle.
The following conversation then took place, according to paragraph eight of Leanne Birch's statement.
"When the three of them were running towards the car I said, "Is Paul all right?" Jodie said, "He deserved what he got." As I was saying this the bloke with the knife came at me with the knife. He raised the knife, pointed it at me and said, "Fuck off." I told my daughter to take off and I ran up the stairs to Paul's unit.
Those then shortly are the facts of the matter.
          In the record of interview the appellant raised the matter of child abuse. The justification for his aggressive behaviour was a claim that the victim had been improperly interfering with his wife's sister's two year old child.
          The appellant himself gave evidence. He said:
"My girlfriend Jodie, her sister, told me what her ex-boyfriend had done to her daughter."
The appellant said he had two case of beer to drink. He agrees he took a knife to the premises. He said that he wanted to bash the man because of what he did to the little girl.
          The appellant gave evidence that he pulled out the knife and that he used it. He did not mean to use it. He has been in Australia two or three years, had a difficult childhood in Apia in Samoa. He has a two week old son. He has a problem with his drinking but has made a genuine effort to overcome that.
(T5: 20-22)
Judge Mitchelmore also commented about the gravity of the attack, and in particular the use of a knife. His Honour noted that:
… The use of knives is viewed seriously by the courts. It was said by the Court of Criminal Appeal in Underhill 9 May 1986 and quoted with approval by Mr Justice Finlay in R v Vo 10 April 1990 that this Court and other criminal courts have stated repeatedly that those who use knives when perpetrating criminal offences, must expect to receive a significant measure of criminal punishment in consequence. A knife is held in universal abhorrence within the community and this view is shared by the criminal courts.
          I take into consideration that he has never been in gaol. Indeed he has never been in trouble before. I note that the knife was 30 centimetres long. In the old measurements that is close on a foot.
          It is wrong for people to take the law into their own hands. If the courts permitted that to occur, anarchy would result.
          After the incident the appellant made no attempt to assist the victim despite the gravity of the victim's injuries. Indeed he raised his knife to Leanne Birch and told her to "Fuck off." These circumstances somewhat aggravate the offence.
          A further aggravating feature that I mentioned to Mr Bowers in his address, and which Mr Bowers pragmatically recognises, is that the assault took place in the victim's own home. This aggravates the offence. A person in their own home is entitled to their privacy and their safety. This was a complete infringement by the appellant upon the sanctity of the victim's own premises.
(T5: 24-25)
The second set of offences that resulted in Mr Hui's consideration for deportation were all associated with his relationship with his then-partner, Ms Haffenden. The Tribunal did not have a detailed account of the various events which resulted ultimately in Mr Hui's sentence of a total of 12 months imprisonment following his conviction on assault and breach of DVO charges in 1995. However, when considering Mr Hui's appeal against the severity of the sentences imposed upon him following these convictions, Nield J stated that Mr Hui's assault on Ms Haffenden on 28 April 1995:
… followed an argument and her leaving her home to go to a nearby telephone booth to ring for assistance from the police. There he pulled her hair and struck her face against some part of the booth. He was arrested following this incident …
(T16: 69)
Judge Nield also commented, as noted earlier (see paragraph 15 above), that the offences were serious and that he would have imposed a more severe sentence than the one which had been meted out by the magistrate. He went on to say:
Any man who assaults a woman should go to gaol. Any man who does so twice must go to gaol. Any man who breaches a domestic violence order for the fourth time cannot expect not to go to gaol. The offences that he has committed both carry a sentence of imprisonment for two years and I would have thought that a magistrate would have thought that for the fourth breach of a domestic violence order a penalty approaching the maximum would be appropriate. However, that is not the view taken by the magistrate who dealt with the appellant, and so be it.
(T16: 70)
There was very little information available to the Tribunal, from the documentary material before it, concerning the circumstance surrounding the events which led to Mr Hui's third set of deportable offences. However, at the first hearing before the Tribunal Mr Hui did give personal testimony in regard to these offences and in his subsequent decision, McMahon DP noted the following about the surrounding events:
On 26 September 1997, an incident occurred in the building at Riverwood. He and a neighbour had quarrelled with a man called Peter, who occupied the flat next door. On the day in question, there was an altercation between Mr Hui and his neighbour on the one hand, and Peter on the other hand, when both set upon Peter and seriously assaulted him. In evidence before me, Mr Hui said that they had tried to hang Peter with a sheet. They wanted to scare him. Mr Hui agreed that he had been drinking a considerable amount prior to this incident. Although he subsequently denied to immigration officers any knowledge the circumstances of this incident, he agreed at the hearing before me to give these details. He was charged and convicted of affray and of assault occasioning actual bodily harm. He was sentenced to a term of 12 months imprisonment with an additional 12 months on each charge. He again appealed and was successful in having his sentence varied to a fixed term of 12 months. This was the third offence which qualified the applicant for deportation.
(paragraph 16)
It should be noted that during the course of the present proceedings, and in giving his personal testimony, Mr Hui admitted committing each of the offences of which he had been convicted, including the most recent offences of affray and assault occasioning actual bodily harm. However, he had previously denied committing these offences, as well as the assault in 1995 (T49: 196).
Risk of Recidivism
Policy Direction
Paragraph 13 of the Policy Direction provides guidance to decision-makers about the factors which should be considered when assessing the risk of recidivism. The Policy Direction makes it clear that a person's previous general conduct and total criminal history are highly relevant to assessing this risk. In particular, the following factors will also be relevant to that assessment:
(a)the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
(b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
(Policy Direction: paragraph 13)
It was not a matter of dispute between the parties that Mr Hui had been warned on two previous occasions about the risk of deportation (Policy Direction: 13a). Mr Hui also did not dispute the general history of his previous convictions in Australia which have already been listed (Policy Direction: 13(b); Attachment 1). There was, however, dispute between the parties about the nature and scope of Mr Hui's attempts at rehabilitation and the contribution that he might make in the future to the Australian community (Policy Direction: 13(c)).

Performance in Prison

The evidence before the Tribunal showed that since taking up residency in this country in June 1990 Mr Hui has spent a considerable proportion of his time in custody. New South Wales Department of Corrective Service records indicated that Mr Hui was incarcerated during the following periods:
2 October 1992         until                2 July 1993
12 August 1994         until                11 November 1994
3 May 1995               until                4 May 1995
9 May 1995               until                14 September 1995
10 December 1995     until                11 December 1995
3 April 1996               until                15 November 1996
26 March 1998          -
(T49:194)
The most recent information concerning Mr Hui's performance in prison was contained in a parole report dated 14 July 1998 (T42). In that report Mr Hui's case manager supervisor noted that he could be very moody as proven by his breaking of a glass door of the unit manager's office. He was judged not to be suitable as a C category (low security) inmate and it was stated that he should be placed on an anger management course prior to any reduction in his security classification. The prison governor concluded that:
Reports to date are not positive, in fact they give every indication that he has problems which a [sic] clearly manifest in aggression and violence. All factors indicate an inability to conform with "norms".
(T42:155)
Despite these comments about the need for Mr Hui to participate in an anger management course there was evidence before the Tribunal which showed that previously he had attended a 12 week anger management program and was awarded a certificate of attendance for such participation on 25 June 1998 (T42:165). The correctional records also indicated that Mr Hui had had no contact with a psychologist during the course of his current period of incarceration (T42:157). Mr Hui had, however, attended a one-to-one drug and alcohol program and his interest in that program was judged to be "good". This assessment also noted that Mr Hui:
… states he really doesn't [sic] have a problem. He is in the Hospital. He [sic] punched a door in 14 wing & cut his arm badly.
(T42:158)
A wing officer's assessment of Mr Hui, dated 14 July 1998, noted that he was uncertain about his likely success on parole. The officer stated that Mr Hui:
Can be aggressive if requested to perform tasks he is not inclined to do. Tries to pass off by joking. Seems to be a bit immature and lazy. Likes to be the centre of attention with other inmates.
(T42:160)
In the course of his personal testimony to the Tribunal Mr Hui stated that since being held in Immigration detention he had become a member of an Inmate Development Committee established by the governor of the detention centre (see A1). As the Polynesian delegate on this committee it had been his responsibility to help inmates with a violence problem, and to talk to them about ways of resolving conflict without resorting to physical aggression. Mr Hui said that he was a violent man himself but that the longer he stayed in gaol and learned about life the more he realised that violence was not the way to solve problems (see in general transcript 7 February 2000: 5-7).
Mr Hui also confirmed that the testimony he had provided to the Tribunal at the first hearing of this matter concerning his involvement in church activities was still accurate, and that he had been maintaining his regular attendance at church (transcript 7 February 2000: 5). He said that if allowed to remain in Australia he had been offered a job as a bricklayer (transcript 7 February 2000: 7). He also said that if released it was his plan to live with his brother, and to seek counselling about his drinking problem (transcript 7 February 2000: 8).
In his cross-examination of Mr Hui, Mr Beech-Jones questioned him at length about his past drinking behaviour and the influence that this had upon his past offending. Mr Hui agreed that his drinking problem had become more serious when he arrived in Australia (transcript 7 February 2000: 9). He also agreed that he was "really drunk" at the time that he had committed the malicious wounding offence in December 1991 (transcript 7 February 2000: 10). He was also drunk when he had assaulted his partner, Ms Haffenden (transcript 7 February 2000: 13).
Mr Hui said that he had continued to have a problem with his drinking after he had been released from prison in November 1996 and that this had interfered with his ability to find employment (transcript 7 February 2000: 18). He had also been drinking at the time that he had assaulted his neighbour which resulted in the most recent convictions for assault occasioning actual bodily harm and affray (transcript 7 February 2000: 18). Mr Hui agreed with Mr Beech-Jones that he could not point to any period of time when he had been out of custody when he had not been drinking (transcript 7 February 2000: 19).
Deterrence
A third factor referred to in the Policy Direction relevant to an assessment of the level of risk to the community is the possibility that the deportation of a person like Mr Hui will act as a deterrent to others (Policy Direction: paragraph 14). The Tribunal did not receive any specific evidence regarding this factor from either of the parties. However, in both its Statement of Facts and Contentions, as well as in its submissions, the respondent asserted that Mr Hui's deportation would deter non-citizens from committing similar offences by showing that persistent violent offenders will not be tolerated in this country. Further consideration of this submission is deferred until later in this decision.
Best Interests of the Children
The Policy Direction makes it clear that as a matter of primary consideration in a deportation proceeding, a decision-maker must take account of the best interests of any children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee (Policy Direction: paragraph 16). The Policy Direction recognises that:
It is the Government's view that, in general, the starting point for any consideration of the best interests of the child would be that the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the potential deportee, include, but are not limited to:
(a)any evidence that the potential deportee has abused or neglected the child in any way, including physical, sexual and/or mental abuse; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the potential deportee's unlawful conduct.
(Paragraph 18)

The Policy Direction also contains the following general guidance to decision-makers:
19.It is the Government's view that when considering what are the best interests of the child or children, regard should be had to:
(a)the nature of the relationship to potential deportee;
(b)whether the child is an Australian citizen or permanent resident;
(c)the likely effect that any separation from the potential deportee would have on the child or children;
(d)the likely effect on the child or children of leaving Australia if the parents decided to take the child or children with them from Australia; and
(e)the impact of the potential deportee's prior conduct on the child.
20.It is the Government's view that considerations which aid in assessing the above factors include:
(a)the age of the child;
(b) the time that the child has spent in Australia;
(c) any language barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances;
(d) any cultural barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.
(e) any medical problems of the child and the likely access to relevant facilities in the likely country of future residence;
(f) the child's degree of emotional and psychological dependence on the potential deportee; and
(g) the amount of time that the potential deportee has actually spent with the child.
Mr Hui has two children from a relationship with Ms Haffenden – Ricky, now aged eight years, and Vessie, aged five years. Both children now reside with Ms Haffenden and her current partner of 17 months, Eric, and his five year old son. Ms Haffenden, aged 36 years, has two older children by a previous relationship who no longer live with their mother.
Ms Haffenden did not give personal testimony to the Tribunal. However, reference has already been made to the views she expressed about her relationship with Mr Hui, and his relationship with their children, at the time of an earlier consideration of Mr Hui's deportation by the respondent (see paragraphs 16 and 17 above). In addition to these views expressed by Ms Haffenden the Tribunal also had before it a statement by Ms Haffenden's mother, Mrs Hazel Haffenden, about the family. Mrs Haffenden noted, in part, that:
3.I am Ricky and Vessie's grandmother. Ricky and Vessie are the children of my daughter, Jodie Haffenden and Lokeni Hui.
4.I have a close relationship with the children and have seen them almost everyday over the past couple of years. We go to the pictures and the beach together. On some weekends, they stay overnight at my house and on school holidays, they sometimes stay for up to a week.
5.The children are living with their mother, Jodie. Although I do not live with the children, I live very close to them. Jodie takes good care of the children. To my knowledge, they are facing no difficulties at school or at home.
6.My hopes for the children in the future are for them to stay happy and content as they are now. I do not want them to worry as to when they will see their father and where they will see him. These children should not be subject to visiting jails and as they are getting older, it can be very traumatising for them.
(R2)
In his personal testimony to the Tribunal Mr Hui acknowledged that for much of the time that he had been a father he had either been in custody, or separated from Ms Haffenden, and had only limited access to his two children (see in general transcript 7 February 2000: 19-23). The last occasion on which Mr Hui saw his children was early in 1997.
In addition to this documentary material and personal testimony the Tribunal had the benefit of a detailed report, prepared by Dr Brent Waters, a forensic child psychiatrist, concerning the best interests of the two children (R1). Dr Waters also gave personal testimony to the Tribunal about the contents of this report (see in general transcript 7 February 2000: 32-46). Dr Waters said that in preparing his report he had interviewed the children with their mother at their home in November 1999. However, he had not been able to interview Mr Hui, nor observe him in any interactions with his two children.
Dr Waters said that Ms Haffenden had told him that she had lived in a relationship with Mr Hui for a period of about five and a half years after his arrival in Australia in June 1990. Their relationship had always been a difficult one because Mr Hui drank too much and was also violent, and this was the reason that they had separated. She said that Mr Hui had still been interested in the children after their separation and she thought that he would like to be seen by them to be their father and to have that role in their lives. However, she also said that the last contact Mr Hui had with the children was about two years ago and that since that time, when he had been in custody, he had sent occasional letters to her through her mother as she had tried to withhold her address from him after the separation.
Ms Haffenden also told Dr Waters that she believed that if Mr Hui were to be deported to New Zealand she did not think it would not be a significant issue for the children. She said that her daughter did not have very many memories of her father because she was only aged two years when she last saw him while Ricky had a clearer memory because he was five years old at the time. Ms Harffenden also said to Dr Waters that:
… the children were attached to him when he was living with them and for shortly after their separation. If they receive a letter, they talk about him in positive terms. They seem to be curious about him and wonder what he is doing.
Ms Haffenden told me that she has nightmares that he will turn up again. She said she would find it hard to trust him with the children. She would be worried that he would try to get information from them about where she was living, then he might arrive and threaten or assault her. She also said that he spoils them rotten, giving them excessive treats such as lollies, and he drinks in front of them. He teaches Ricky to be violent because his attitude when he is around the children is that he is threatening and verbally abusive. However she said he is not always a bad person. If he wants to be, he can be quite nice.
On the one hand she said it is sad that they can't see him at the moment, but on the other hand she said that he is very hard to trust and it would be quite stressful for her if they were to see him, particularly if there was any risk that their address might be disclosed so that he might come around.
Ms Haffenden brought out some photographs of Mr Hui and the family. The children crowded over the two photographs and Ricky in particular enthusiastically showed photographs of himself and his father. Ms Haffenden's attitude was not negative about this, and she seemed to have little difficulty acknowledging the relevance of the father to the children's lives.
(R1: 3)
In relation to Ricky Hui, Dr Waters said that Ms Haffenden had told him that he was quite like his father when he got angry but was generally quite good-natured. Ricky still occasionally had behavioural problems, but these had been much worse around the time that Ms Haffenden had separated from Mr Hui. Ricky had recalled visiting his father in gaol and he did not seem to view this as an adverse experience, but rather, as a pleasant memory of a time when he had seen his father. Dr Waters reported that:
Ricky was a slim, rather anxious and insecure looking boy. He was clinging with his mother, and even became a little clinging with me in a rather quiet way. He seemed to be of low average intelligence, although this may have been a function of his social apathy. Despite this, he was a quite active boy who was restless and distractable.
(R1: 4)
In relation to Vessie, Mr Hui's daughter, Ms Haffenden told Dr Waters that she had been a hyperactive child from the time she began to walk. Dr Waters noted that:
Vessie is an attractive, buoyant little girl who is strikingly overactive and restless. Her concentration span seemed to be very short. She was also extremely over-familiar with me, standing close to me and within a few minutes, trying to embrace me. She showed no evidence of anxiety or any other negative mood. She was irritable and provocative with Ricky, and tended to lead him into trouble. She was a rather precocious, loud child who was very attention-seeking. She seemed to be of low average intelligence. (R1: 5)
Based on his observations and his interview with Ms Haffenden, as well as the documentary material supplied to him, Dr Waters offered the following opinion:
In my opinion, both children are troubled and extremely insecure. It is likely that both are below average in their intellectual abilities and related to that, in their capacity to cope with stress. Ricky appears to be a somewhat insecure boy who has periodically been involved in minor anti-social behaviour such as aggressiveness and stealing. He also is distractable, restless and moderately overactive. Vessie is an extremely precocious child from a behavioural point of view. She is also impulsive, provocative, attention-seeking, inattentive and overactive. She is strikingly over-familiar with strangers.
Ms Haffenden is a rather poor historian even about her own children's development, and it was not clear to me the origins of the children's disturbance. However having observed her rather poor parenting behaviour and her relative lack of awareness of the major developmental milestones of the children and also an objective appraisal of her children, as she sees them, it is my view that it is likely that under-socialisation and poor parenting have been important ingredients in the children's disturbance. In addition to this, it is likely that the children have been adversely affected by the destabilisation of family life over the period when Mr Hui was a family member, which was associated on his part with drunkenness, domestic violence, and exposing the children to verbal and physical abuse as well as disharmony in the relationship between the parents. I also formed the view that Ms Haffenden's parenting has not improved substantially since then and that there may also be other sources of instability in family life at the moment.
In addition, it is possible that Ricky's behaviour has to some extent been guided by having observed the father's misconduct, which he copies. Finally, both children are strikingly overactive, restless and impulsive. It would seem that the father is of a rather similar disposition, and it is possible that in addition to copying this behaviour from the father and to being poorly socialised by the mother, the children are also genetically predisposed to these same temperamental traits.
The mother seems rightly concerned about Mr Hui's potential misconduct if access were to recur. I note that there were a number of breaches of AVOs, and it would appear that Mr Hui is unlikely to observe any undertakings in the long term which might be directed towards preventing any misconduct on his part during access in the future. In addition, the mother is fearful of this possibility, based on her own experience.
It is my opinion that the children's development in emotional and behavioural domains has already been derailed by the nature of family life with their mother over a period greater than that inclusive of the father's direct influence and also as a consequence of the disruptions which the father has brought into family life. The prospect of further access to my mind, not only is likely to disturb the mother and further undermine her already quite poor parenting abilities, but it runs the risk of exposing the children yet again to acts of disruptiveness, either at access or at the family home as neither child can be relied on not to reveal the address to the father.
The children know who their father is and Ricky in particular, has quite clear recollections of him and can identify him in photographs which have not been concealed from him. He seems to have an affection for his father and there is probably some bond of attachment there. On the other hand, I am satisfied that Vessie has next to no remaining attachment to her father, and her pattern of indiscriminate attachment suggests to me that any attachment she might have to her father would be superficial at best.
It is my opinion that the benefits of fostering and improving the attachment to the father through access (which in my view is an unlikely prospect at best) are far outweighed by the potential to disrupt and further derail the children's development which is presented by the prospect of access by the father. Thus I would not be recommending that access by the father will lead to an overall benefit to the children.
Ultimately, the children may wish to form a relationship with their father. However in my view, the most prudent time for this to occur would be when the children are mature and able to make their own decisions in this regard. In this respect, whether he resides in Australia or in New Zealand is relatively immaterial.
I draw these conclusions taking into consideration the respective ages of Ricky and Vessie, their cultural background, the amount of time that Mr Hui has actually spent with them and the degree of their emotional and psychological dependence on Mr Hui.
I would note that my conclusions apply equally to either child, although the detailed bases of these conclusions differ for each child. The net effect though is the same for each child. To this extent, the children's separate interests coincide.
(R1: 5-6)
Dr Waters was cross-examined about his report by Mr Jackson, on behalf of the applicant. Dr Waters acknowledged that both Ricky and Vessie were children that would be identified as "at risk" by the Department of Community Services (DOCS) and that DOCS had already intervened in some way in relation to Ms Haffenden's older children. From his observations Dr Waters agreed that Ms Haffenden presented as a mother who was having difficulty coping with parenting and who had two troubled children who were, at one level, showing signs of neglect. He thought that most of the parenting problems were probably attributable to Ms Haffenden and possibly her new partner and that it was to a degree speculative to link any of these problems to Mr Hui (see in general transcript 7 February 2000: 34-36).
Dr Waters said that there was no evidence that Mr Hui had ever been violent or aggressive towards either of the children. He also agreed that his assessment of what would be in their best interests might be different if Mr Hui did not continue to have a drinking problem. This led to the following exchange between Dr Waters and Mr Jackson:
So that if Mr Hui did not continue to drink or if he didn't continue to have a drinking problem your assessment might be quite different or wouldn't that be quite different?
--Well, I mean, I think the main problem would be the extent to which he is aggressive, impulsive, that sort of thing now, that may or may not be associated with alcoholism. The way it was presented to me the worst of his behaviour occurred when he had been drinking but I don't know whether it was entirely confined to that time. But certainly if aggressiveness, threatening behaviour, impulsiveness were no longer a part of his behaviour and he was able to, and he was able to be a capable, consistent patient carer then I think, my conclusions may well be different.
(transcript 7 February 2000: 40)

Hardship

Paragraph 21 of the Policy Direction observes that:
It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include:
(a) the degree of hardship which may be suffered by the potential deportee; and
(b) the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration).

Paragraph 21(a): Mr Hui

In assessing the degree of hardship which may be suffered by Mr Hui, paragraph 22 of the Policy Direction provides a list of a range of factors which are likely to be considered by decision-makers. This list includes:
(a)whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported;
(c)the degree and extent of the potential deportee's ties with the likely country of return;
(d)the strength of other family, social or business ties in Australia;
(e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.
It was not contended on behalf of Mr Hui that he now had any ongoing marital or defacto relationship with an Australian citizen or resident (paragraph 22(a)). It was also clear that Mr Hui had spent all of his formative years outside this country and was over 30 years of age when he assumed an Australian residency (paragraph 22(b)). Mr Hui told the Tribunal that he had grown up in Western Samoa and that he suffered physical abuse at the hands of a particular uncle when he was young. That uncle now resided in New Zealand. When he had left Samoa he had gone to New Zealand and had lived there with his brother. His brother had now come to Australia and Mr Hui said that he had followed him to this country. He now had few ties with either New Zealand or Samoa (paragraph 22(c); see transcript 7 February 2000: 26-27).
Paragraph 21(b): Other Persons
At the earlier hearing before McMahon DP, Mr Hui's brother, Mr Vase Hui, gave personal testimony about the family circumstances in this country, as well as in New Zealand and Samoa. Because of a tape malfunction not all of Mr Vase Hui's testimony was recorded. However, Mr Vase Hui was interviewed by the respondent's officials on 14 August 1998 (T49:199). In that interview Mr Hui was reported to have said that he was very close to his brother and had always tried to help him. He had not seen his brother since he had gone to prison. He would be upset if he were to be deported because there was no one in New Zealand to help him and he would be very worried about him. He would miss his brother and would have a really good talk to him when he got out of prison and would make sure that he would not get into trouble again (T49:200).
Mr Lokeni Hui was also interviewed about the same time as his brother about his family circumstances (see for example T49:197-198). In the course of the interview Mr Hui indicated that he had come to New Zealand from Western Samoa when he was 15 years of age. He had no contact with his father for 15 years and he had no contact with his other brothers and sisters whose whereabouts were unknown. He had been employed in New Zealand as a builder and after his arrival in Australia he had been employed as a bricklayer for two weeks and then in 1990 as a factory hand for several years.
CONSIDERATION
Submissions and Policy: Expectations of the Community

The relevant factors which require consideration by the Tribunal in relation to the expectations of the Australian community have already been referred to. Addressing these factors in his submissions Mr Jackson, on behalf of the applicant, acknowledged that the offences committed by Mr Hui were serious. They were very violent crimes committed impulsively. Nonetheless, when looking at the maximum sentences that were available in relation to each of the offences of which Mr Hui had been convicted the actual sentences imposed were at the lower end of the scale.
Mr Jackson said that the critical area in this case came in assessing the community's desire not to be put at risk by Mr Hui re-offending. Mr Jackson conceded that at "first blush" a person who had committed a number of violent crimes and who had not heeded past deportation warnings was a person at risk of recidivism. However, Mr Hui had, during the most recent period of incarceration, demonstrated a change in his behaviour. This change was evident from his acknowledgment of the commission of the offences of domestic violence and also his appointment as a peacemaker in the prison system. This was further evident from the reference provided by the Anglican chaplain, Captain Carter (A2).
Mr Jackson acknowledged that the difficulty for Mr Hui was that he had been in prison for a substantial period of time and had not been exposed in that environment to alcohol. No one could say for certain that there was no prospect of re-offending should Mr Hui be allowed to remain in Australia but there was some comfort to be taken from the fact that he had evidenced change in his attitude and behaviours while serving his most recent prison sentence.
In his submissions made on behalf of the respondent, Mr Beech-Jones pointed to the repetitive nature of the violence committed by Mr Hui. It revealed a dangerous offender and the pattern was also one which was always accompanied by the abuse of alcohol. Each time he had been incarcerated Mr Hui had professed to now realise that he needed to change his behaviour but the degree of repetition of his violence was such that there was really nothing which had been advanced on behalf of the applicant to suggest that the pattern would not be repeated in the future.
The Policy made it clear that crimes of violence or the threat of violence were of special concern to the welfare and safety of the Australian community. This was especially the case when that violence involved mothers or women. The Tribunal now had the opportunity to break this cycle of violence and to protect the Australian community by deporting Mr Hui.
The Tribunal's Views
Through his own actions, sustained over the majority of the period that he has been in this country, Mr Hui has demonstrated a strong and continuing propensity to act in a violent manner towards members of the Australian community. That violence has included a vicious assault with a machete; acts of physical brutality towards his defacto partner; and an attempt to hang a neighbour. He has also continued to display aggression while in prison, having smashed a glass door with his fist.
The evidence also shows that this is the third occasion on which Mr Hui has been considered for deportation from this country. Despite receiving two prior warnings, he has continued with his pattern of violent conduct and its associated alcohol abuse. These warnings, and periods of incarceration, appear to have had little impact upon his behaviour. Reports on his most recent performance while in custody suggest that even though participating in an anger management course, he has little control over his behaviour, and that once exposed again to the outside world and the availability of alcohol, there is a strong possibility that he will repeat his violent actions. Although there may have been some positive signs of change, in the form of his acknowledgment of the commission of past acts of domestic violence, as well as the assumption of a role in the counselling of potentially violent offenders in the prison system, and his religious activities, they point at best to only a slim hope that Mr Hui may be a less violent person in the future. Given his past record and the threat that he represents to the Australia community, it is a hope to which little weight can be attached.
The Australian community has every right to expect that it will be protected from the risk of re-offending by Mr Hui, a non-citizen, who has already inflicted significant harm upon innocent and defenceless citizens. The Tribunal is required, however, under the terms of the Policy Direction, to weigh up the risk of re-offending, and the associated expectation that those who present an unacceptable risk to the community will be expelled, with the other factors which are relevant, including the primary consideration of what is in the best interests of Mr Hui's children, Ricky and Vessie. The Tribunal now turns to the submissions made on behalf of both parties in relation to the best interests of the two children, and also to the other factors which should be weighed up in this matter.
Submissions and Policy: Best Interests of the Children and Other Factors
Mr Jackson acknowledged that there was almost no direct evidence before the Tribunal about the interactions between Mr Hui and his children. Mr Jackson referred to one passage in the transcript of the first proceedings before the Tribunal (S1:259) where Mr Hui had described how he had called his children on the phone on a regular basis during the time that he was in prison. It was a telling illustration, suggested Mr Jackson, of the affectionate but perhaps inadequate interaction that Mr Hui had with his children.
In regard to Dr Waters' report and testimony, Mr Jackson suggested that there was no suggestion that Mr Hui had been violent towards his own children, and that Dr Waters had accepted in cross-examination that most of the children's insecurities or inadequacies of socialisation could be explained by the nature of their parenting by Ms Haffenden. Mr Jackson contended that even in Mr Hui's absence Dr Waters had observed a keen interest in his father on Ricky's part, as demonstrated by his response to photos that he had been shown of his father, and of the two of them together.
Mr Jackson also submitted that the cross-examination of Dr Waters had revealed what might be termed two views of what was in the best interests of the children. One might be loosely termed a child-centred perspective and the other a parental or community oriented model. Dr Waters had concluded in his report that contact with their father could be disruptive to the children and not in their best interests, but when queried about this conclusion and whether a child-centred approach yield a different conclusion, Dr Waters had accepted that a desire for a father, and one's natural father, from a child's point of view, was a strong factor. The difficulty for Mr Hui was that his desire to have an active role in his children's lives was hampered by his imprisonment. He had nonetheless tried to retain contact in whatever way was feasible. There remained the difficult issue of satisfying the current needs of Mr Hui's children. In a situation where their mother was not coping completely with the parenting role it became a matter of speculation as to just what might happen to the children if they did not remain in their current environment.
Mr Jackson said that Dr Waters had accepted that if Mr Hui could overcome his difficulties he might well play a positive role in the children's lives. From the children's perspective, the Tribunal should take the view that their father had expressed a strong desire to have access to them and a strong commitment to them, and that they also wished their father to play a part in their lives. Mr Jackson also said that if Mr Hui were to be deported to New Zealand he would not, for the foreseeable future, be able to have access to his children. He would also lose contact with his brother who was his only close relative and with whom he had a strong association.
In his submissions made on behalf of the respondent, Mr Beech-Jones said that the short summation of Dr Waters' report was that the children's situation was fragile, on the edge, and that the addition of someone such as Mr Hui into that situation would only make it far worse so far as the "child-centred approach" which had been referred to. The role of the Tribunal in looking after the best interests of the children was definitely not the same thing as inquiring as to what the children want subjectively. There was no evidence to support the contention made on behalf of the applicant that Mr Hui had a strong commitment to his children. Rather, the evidence showed that after he had separated from Ms Haffenden and came out of gaol in the period from November 1996 to about October 1997 he had only seen the children on three or four occasions. Since that time he had sent them occasional letters. When one coupled this with the fact that when he was in the community he had significant problems with alcohol and violence it was not difficult to see why Dr Waters had reached the conclusion about what was in the best interests of the children.
Mr Beech-Jones said that Dr Waters' conclusion was one that should be accepted by the Tribunal. In this case the interests of both children were best served by separating them from Mr Hui. This was because their struggling mother was having difficulty with them and they were becoming dysfunctional, and that situation would become worse if they were to also have access to their father on a regular basis. Mr Beech-Jones also contended that there was likely to be little hardship to either Mr Hui or his brother if they were to be separated, since New Zealand was a country which was both close and similar in its culture to Australia.
The Tribunal's Viewes
There is little doubt from the information provided and professional views expressed by Dr Waters that Mr Hui's two children, Ricky and Vessie, already live in a dysfunctional family setting. The Tribunal found Dr Waters to be a most credible and convincing witness. He is a highly experienced child psychiatrist with a long- established practise in the field in both public and private settings. He presented his findings in a balanced and careful way and was quite prepared to acknowledge certain limitations and ambiguities regarding the issues addressed in his report.
The picture that Dr Waters painted was quite bleak of both Ricky and Vessie's past and present experience living with their mother and her partners. Ms Haffenden would seem to have struggled to rear each of the children under adverse circumstances including, while her relationship was maintained with Mr Hui, the constant threat of violence and abuse. Dr Waters also reported that more recently, since Mr Hui's current incarceration and most limited contact with his two children, Ms Haffenden and her family had come to the notice of DOCS and that both Ricky and Vessie were almost certainly viewed as being "children at risk" as a result of that interaction with DOCS.
A limitation of Dr Waters' report, and one that was acknowledged by him, was that he had not been able to observe Mr Hui interacting with either Ricky or Vessie. Such an observation would undoubtedly have added to the value of Dr Waters' report but in its absence the Tribunal can only note that the evidence before it revealed only very limited contact between Mr Hui and his two children over the period since the termination of his relationship with Ms Haffenden. Even during the time that their relationship was intact the nature of Mr Hui's interactions with his children appear to have been tenuous at best, as he was in and out of custody and displaying aggressive and drunken behaviour.
The Tribunal accepts Mr Hui's present and expressed desire to maintain ties with his children and to assume the responsibilities of fatherhood. The Tribunal also accepts the indirect evidence referred to by Dr Waters of Ricky's continuing interest in his father, expressed through his reaction to photographs. In Vessie's case, the tender age at which she was separated from her father through his imprisonment suggests that she has no direct memory of his presence but still has positive feelings about the person that is her natural father. Despite these feelings, the Tribunal finds persuasive the professional opinion expressed by Dr Waters that renewed access by Mr Hui would not lead to an overall benefit to either Ricky or Vessie. As Dr Waters also indicated, ultimately both children may wish to form a relationship with their father but the most prudent time for this to occur would be when the children are mature enough to make their own decisions about this crucial issue.
CONCLUSION
Since 1990 Mr Hui has been able to enjoy the benefits and privileges of living in Australia. During this time Mr Hui has made few contributions to this country, while inflicting upon a number of its citizens significant anguish and harm through his violent conduct. He has been punished for that conduct by a series of prison sentences which have failed to act as a deterrent or a path to rehabilitation. The Tribunal has already concluded that if released back into the community there is a strong possibility that he will re-offend.
Having given very careful consideration to the evidence which has been presented to the Tribunal about what is in the best interests of Mr Hui's children, Ricky and Vessie, and to the hardship which Mr Hui and his immediate family would suffer if he is to be deported to New Zealand, the Tribunal believes that this evidence is insufficient to outweigh the Australian community's legitimate expectation that it will be protected against the risk of a non-citizen like Mr Hui committing further acts of violence. It is never an easy matter to separate two children, both Australian citizens, from one of their parents. Nonetheless, in the present case the weight of the professional evidence suggests that such separation is, in the circumstances, in the best interests of these children, who have already been subjected to substantial trauma and disadvantage. Deportation will also cause hardship to Mr Hui and to his brother, but it remains a factor which is insufficient to preclude the need to protect the Australian community and deter like conduct by other non-citizens.
The decision under review is thus affirmed.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell
Signed:         .....................................................................................
  Associate
Date of Hearing  7 February 2000
Date of Decision  23 March 2000
Counsel for Applicant  Mr Cameron Jackson
Counsel for Respondent               Mr Robert Beech-Jones
Representative for Respondent             Mr Jason Fong

ATTACHMENT 1
Unless otherwise specific, all references to "Tp" are to pages in s 37 documents and all references to "Sp" are to pages in the Supplementary s 37 documents.

FACTS
Date  Event  Page
1 March 1958               Mr Lokeni Hui is born in Western Samoa              Tp174
1970/71  Moved to New Zealand  Tp46
1973/74  Became New Zealand citizen  Tp100
18 June 1981              Convicted in Western Samoa;  Tp116
  wilful damage; fined $40
18 August 1981          Convicted in Western Samoa;  Tp116
  insulting
2 October 1988            Arrived in Australia as a New Zealand citizen      Tp175, 192
12 October 1988         Departed Australia  Tp191

5 December 1988 Convicted in New Zealand; theft of Tp116
property under $500; ordered to pay costs

4 September 1989     Convicted: New Zealand; common                 Tp116
  assault; fined $300
9 June 1990                 Arrived in Australia  Tp191
27 September 1991    Sentenced in Dowing Centre LC:  Tp169

·Place feet on seat on rail/bus;
·Fine, 1 day default

22 June 1992 Sentenced: Bankstown LC; Tp151

·Malicious wounding
·Committed on 4 December 1991;
·15 mths minimum, 5 mths additional

21 September 1992 Ricky Hui is born Tp67
7 October 1992 Appeal from 22 June 1992 sentence; TP151

·Campbelltown DC; sentence varied
·9 mths minimum, 3 mths additional

8 October 1992            Mr Hui begins prison sentence  Tp171
5 February 1993          Parole report on Mr Hui  Tp29
10 March 1993             Mr Hui interviewed by a Departmental officer       Tp36
  about his possible deportation
11 March 1993             Mr Hui's ex defacto, Ms Haffenden, is                   Tp49
  interviewed by Department
2 June 1993                 1st consideration for deportation  Tp54
  Warning letter  Tp66
2July 1993  Released on parole  Tp170
24 September 1993    Campbelltown LC: DVO issued  Tp68
  Ms Haffenden was the complainant
21 January 1994        Sentenced: Campbelltown LC;  Tp168

·Failure to pay victims compensation levy
·Fined, 1 day default

21 January 1994 Sentenced: Campbelltown LC; Tp151

·Breach of DVO;
·s558 recognisance self $1000 3 yrs

18 February 1994 Sentenced: Downing Centre LC; Tp168

·Avoiding fare on railway;
·Fined, 1 day default

11 April 1994                Vessie Hui is born  Tp68
12 August 1994           Mr Hui begins prison sentence  Tp170
15 August 1994          Sentenced: Campbelltown LC;  Tp68, 152

·Breach of DVO;
·s558 recognisance self $1000 2 yrs

15 August 1994 Sentenced: Campbelltown LC: Tp68, 152

·Assault and breach DVO;
·3 mths and 3 mths concurrent

11 November 1994     Mr Hui is released (sentence expired)  Tp170
28 April 1995                Arrested (on remand)  Tp170
9 May 1995                  Sentenced: Campbelltown LC;  Tp67, 152

·Assault committed on 28 April 1995
and breach of DVO;
·6 mths and 6 mths cumulative

14 September 1995     Released on bail  Tp170
11 December 1995     Prison  Tp170
15 December 1995     Released on bail  Tp170
26 February 1996       Sentenced: Campbelltown LC;  Tp153

·Remain upon closed lands;Fine $300, 3 yr good behaviour bond

3 April 1996 Appeal from 9 May 1995 sentence: Tp67, 152
Liverpool DC;

·Sentences effectively confirmed

3 April 1996 Prison Tp170
1 June 1996 Sentenced: Downing Centre LC; Tp167

·Not make ticket available for inspection;
·Fine, default 2 days

20 June 1996               Parole report  Tp84
11 September 1996     Mr Hui is interviewed by Department again          Tp99
13 September 1996     Ms Haffenden again interviewed by Department   TP113
17 September 1996     Mr Hui's brother, Mr Vase Hui, interviewed by      Tp114
  Department

5 November 1996       2nd consideration for deportation  Tp117
  Warning  Tp132
15 November1996      Released (sentence expired)  Tp170
27 September 1997     Arrested (on remand)  Tp170
9 October 1997           Sentenced: Sutherland LC;  Tp153

·Maliciously destroying/damaging
property;
·Fine $500, victims' compensation $63

16 December 1997     Released on bail  Tp170
17 December 1997     On remand  Tp170
24 January 1998         Released on bail  Tp170
13 February 1998        On remand  Tp170
26 March 1998            Sentenced: Sutherland LC;  Tp154

·Affray and AOABH
·Committed on 26 September 1997;
·12 mths minimum and 12 mths additional
on each charge

2 June 1998 Appeal: Downing Centre DC; Tp166

Sentences varied;
12 mths, 12 mths concurrent

14 July 1998                 Parole report  Tp155
12 August 1998           Mr Hui is interviewed by Department again          Tp174
14 August 1998           Mr Hui's brother is interviewed by the  Tp187

  Department again
28 September 1998    3rd consideration for deportation  Tp193
Deportation order made under s 200 of
Migration Act Tp207
9 October 1998            Appeal lodged with the Tribunal  Tp1
18 October 1998         Released (sentence expired)
19 October 1998         Mr Hui was detained in immigration detention
under s 253 of the Migration Act.
8 December 1998       Federal Court (O'Connor J) dismissed Mr Hui's
appeal against the s 253 decision.
28 January 1999         Tribunal affirmed Mr Hui's deportation order.
21 July 1999                 Federal Court (Carr J) set aside the Tribunal's
  decision to affirm Mr Hui's deportation order
  and remitted the matter back for reconsideration.
3 September 1999      Federal Court (Carr J) dismissed Mr Hui's
second appeal against the s 253 decision.