Iefata and Minister for Immigration and Multicultural Affairs

[2000] AATA 287

DECISION AND REASONS FOR DECISION [2000] AATA 287

ADMINISTRATIVE APPEALS TRIBUNAL     )

)          No Q99/1177

GENERAL ADMINISTRATIVE  DIVISION       )        
           Re      IUTA IEFATA        
  Applicant

And     MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS    
  Respondent

DECISION

Tribunal        Deputy President DP Breen, Presidential Member      

Date13 April 2000   

PlaceBrisbane

Decision         The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant IUTA IEFATA be allowed to remain in Australia.     

(Sgd) DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – risk of recidivism – hardship – fairness of Departmental interviews – community expectations.
Migration Act 1958 sec 200

REASONS FOR DECISION

13 April 2000           Deputy President DP Breen, Presidential Member                  

1. This is an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 5 October 1999 to deport the applicant under Section 200 of the Migration Act 1958.

2. This case was heard before me on 30 and 31 March 2000 in Brisbane.  The applicant, Mr Iuta Iefata, was represented by Mr NR Barbi, Solicitor.  Mr T Ricketts, Departmental Advocate, represented the respondent Minister.

3. Oral evidence was taken from the applicant;  his mother, Mrs Taalefili Luthold;  and his stepfather, Mr Raymond William Luthold.  Further evidence was given by Mr Warren Ho, Accountant for Biggie Rat Clothing Company;  Mrs Debra Townsend, Accounts Manager at Biggie Rat Clothing Company and Ms Vanessa Ng, a close friend of the applicant.

4. The following documents were taken into evidence.

• Exhibit 1            "T" Documents

• Exhibit 2            Statement of Iuta Iefata

• Exhibit 3            Statement of Raymond William Luthold

• Exhibit 4            Statement of Debra Townsend

• Exhibit 5            Statement of Warren Ho

• Exhibit 6            Transcript of Sentencing Remarks by Wilson J

• Exhibit 7            Prison Certificates

• Exhibit 8            Statement of Vanessa Ng

• Exhibit 9            Documents from the Corrective Services file

1. The applicant is 27 years of age and was born in Western Samoa.  His father resides in New Zealand and has only seen him for one week out of his entire life and there is no other contact between them.  His mother left him with relatives in Samoa in 1985 when she travelled to Australia to care for her parents.  Mr Iefata joined his mother in Australia in 1991 at the age of 18 years and has resided here since that time.

2. The applicable Ministerial Direction is Direction 9 – General Direction – Criminal Deportation.  This Direction states that the primary considerations are the expectations of the Australian community and in cases involving children, those children's best interest.  The latter consideration does not apply in this case.

3. There are two aspects to community expectations.  Firstly, the expectation that the community will be protected and not put at risk, and, secondly, the expectation that non-citizens who commit and are convicted of crimes which are abhorrent to the Australian community will be removed from Australia.

4. The first consideration in relation to the protection of the Australian community is the seriousness and nature of the offences committed by the potential deportee.  The applicant's criminal history consists of:

• a conviction for shoplifting in 1992;

• a charge of assault occasioning bodily harm, for which no conviction was recorded; and

• the conviction which is the basis for the deportation order, of unlawful wounding with intent to do grievous bodily harm.  The applicant was sentenced to three years and twenty-six week's imprisonment, with the sentence being suspended for five years after having served one year.

1. The first charge of assault involved a fight which broke out after the applicant and his friends objected to having racist insults directed at them whilst on a beach on the Gold Coast.  Significantly, no conviction was recorded.  The conviction for shoplifting occurred whilst the applicant was still fairly young, all fines relating to the offence were paid and it is not a particularly serious crime.  The Tribunal places little weight on these first two entries on the applicant's criminal history.  Given their circumstances, and considering the punishment imposed, they are not of great seriousness nor do they show a criminal propensity on the part of the applicant.

2. The conviction for unlawful wounding occurred due to a brawl outside a nightclub in Brisbane.  The applicant's friend was thrown down some stairs by a number of bouncers and ended up unconscious in a back alley-way.  The applicant attempted to come to his friend's aid and an altercation broke out with the bouncers.  Fifty to sixty other patrons became involved in the ensuing brawl and it was during this that the applicant picked up a metal bar and wounded one of the bouncers with it.

3. This was a serious incident, a fact which is well demonstrated by the sentence imposed by the Trial Judge.  However, it is important to note that it was not a pre-meditated attack and was perpetrated as a result of the violence inflicted upon his friend.  It is not a crime which is excusable, but it is one which is understandable given the circumstances.

4. The second consideration in relation to the protection of the Australian community is the risk of recidivism applicable to the applicant.  I assess this risk as low.  There was extensive and credible evidence provided by work colleagues and friends, who know the applicant well, that he is a quiet person, not prone to violence, who gets along well with others.  It is clear that his conduct in this "brawl" situation was quite out of character for him;  and in any event, being conduct, however inappropriate and criminal, aimed at protecting a friend.  This conduct was not aimed in the least at personal gain of any kind.

5. Whilst in prison, the applicant has completed the Cognitive Skills Course and the Anger Management Core Programme run by the prison and received positive reports.  He gave evidence that his response to conflict situations in the future will be "to walk away, it's just not worth it".  I find that he exhibited true remorse for the incident and a genuine desire to become a positive member of the community.  He has been ordered to pay around $27,000 in compensation to the victim of his attack and he fully intends to pay this amount off, if he is allowed to remain in Australia.  As a further deterrent for re-offending, the applicant has a five year operative sentence hanging over his head.  He is well aware that the conviction for the deportable offence will remain forever on his record as will his liability to deportation.

6. The applicant also has a firm offer of work from his previous employer, Biggie Rat Clothing Company.  They are eager to have him return to work with the company, as he was a valued employee for almost three years before his incarceration.  He has offers of accommodation from his parents; Mr and Mrs Townsend, Managers at the company and Mr Warren Ho, the company Accountant.  He has ended all contact with the circle of friends he was frequenting clubs with at the time of the incident and now has the benefit of a strong support network which have been a good influence on him since the incident resulting in the conviction.  The applicant clearly has every incentive and opportunity now to rebuild his life and avoid further breaches of the law.

7. The final aspect of the protection of the Australian community is the effect deportation might have in deterring other non-citizens from committing crimes in Australia.  While this may have significant weight in relation to notorious criminals or leaders of crime syndicates, it is of little relevance in cases such as this where the event is often not publicised outside of the deportee's immediate family and friends and only involves a one-off incident with no co-offenders.  As such, little weight is given to this consideration.

8. Therefore, in considering the expectations of the Australian community that they will be protected, the Tribunal finds that the applicant poses no real threat to the protection of the Australian community.  Although his offence was relatively serious, it was clearly out of character for the applicant and he has taken steps to address his offending behaviour.  Further, his risk of recidivism is low and he has good employment prospects and a strong supportive network to assist his re-integration with society.

9. The Australian community does expect to be protected from abhorrent crimes and that non-citizens who are convicted of such will be removed from Australia.  Although this crime is serious, it clearly does not fall into the abhorrent category.

10. Therefore, the expectations of the Australian community, as a primary consideration, do not mandate that the applicant be deported, but instead, require that a strong warning be given.  These proceedings serve as such a warning.

11. The secondary considerations include the degree of hardship which would be suffered by the applicant and by Australian citizens or permanent residents.  The applicant has three elderly aunts in Western Samoa but he has not maintained contact with them since his arrival in Australia.  He currently has no job prospects in Western Samoa and while his ability to speak English would assist him in obtaining employment, his criminal record would severely impede him.  A lack of family support and employment would also have an adverse affect on his complete rehabilitation.

12. Conversely, the applicant does have a strong relationship with his mother, stepfather and twin sister, all of whom reside in Australia.  He has good job prospects with a full-time position being available for him within a week of his release.  He has started a fashion design course at TAFE and will complete it if he remains in Australia.  He has a strong support network of friends and work colleagues and at least three offers of accommodation upon his release.  Deportation would sever these connections as his family cannot afford to travel to Western Samoa and other friends may find it difficult due to work commitments.  Deportation would also deprive the applicant of the excellent employment opportunities he has in this country.  As such, the hardship suffered by the applicant in this case would be quite extreme, with the potential of his returning to a country where he has no accommodation, employment or financial or emotional support.  This is particularly harsh given the positive future available to him in this country.

13. There are a number of Australian citizens who would suffer hardship if the applicant were deported.  Mr and Mrs Luthold would suffer emotionally due to the loss of a son and financially as the applicant had assisted them financially before his imprisonment and intends to do so if he remains in Australia.  The fact that Mrs Luthold would suffer more is only of marginal relevance as the fact is that both would suffer hardship.

14. The applicant's friends and work colleagues, Ms Ng, Mr Ho and Mrs Townsend would all personally suffer the loss of a good friend.  Mr Ho, Mrs Townsend and the Biggie Rats Clothing Company, as the applicant's employer, would also suffer greatly in a more material way.  In the last year they have not found an employee who can fulfil the position left by the applicant to the same standard as the applicant did.  All employees are currently undertaking extra duties and three people are doing the work which the applicant used to do.  If the applicant is deported, then the company will suffer the further hardship of having to employ another person and re-train them, losing the benefit of the three year's training already invested in Mr Iefata.

15. There was evidence before the Tribunal that the answers given by these witnesses to the Immigration Department before the decision to deport was made, were not a true and complete picture of the hardship which they would suffer.  This was primarily due to the limited or complete lack of notice as to the interview, the timing of the interviews and a lack of consideration, particularly in the case of the applicant's mother, as to language barriers.  There was a fair amount of confusion as to the exact scope of various questions asked and only the applicant was provided with a copy of the notes of the interview to look over and add to if he wanted.  The Tribunal does not engage in a judicial review of the process leading to the decision under review;  its sole purpose is to conduct a merits review of the actual decision.  However, such evidence is relevant to understanding why responses to the Department may differ from responses given to the Tribunal.  Such evidence may also assist the Department in fine-tuning their investigative techniques to ensure that their decision-makers receive information of the highest standard on which to make their decisions, which, in turn, may lead to fewer appeals to this Tribunal.

16. The secondary considerations are also balanced in favour of allowing the applicant to stay.  The hardship faced by the applicant if he were to be deported would be quite severe and a number of Australian citizens would also suffer extensive hardship.

17. For these reasons, the Tribunal sets aside the decision under review.  It would be quite wrong to send this young man back to Western Samoa on the basis of an out-of-character incident involving a nightclub brawl.  The primary focus in these proceedings is on the expectations of the Australian community.  Mrs Townsend very aptly stated in her evidence that as a member of the Australian community, before she would expect that someone was deported, she would want to know the full circumstances behind the offence, not just the bald statement of conviction.  The consideration of all relevant circumstances is precisely what this Tribunal is here to do, and having done that, it is clear that the deportation order simply cannot stand.

    I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

    Signed:           Emma Oettinger
      Associate

    Date/s of Hearing  30.3.00 and 31.3.00
    Date of Decision  13.4.00     
    Counsel for the Applicant             
    Solicitor for the Applicant           Mr NR Barbi
    Counsel for the Respondent         
    Solicitor for the Respondent        Mr T Ricketts, Departmental Advocate