Ishibashi and Minister for Immigration and Multicultural Affairs

DECISION AND REASONS FOR DECISION [2000] AATA 948

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/693

GENERAL ADMINISTRATIVE DIVISION       )
           Re      YOSHIMASA ISHIBASHI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

And KIM GIANNI

Party Joined

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date31 October 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – abhorrence of crime – applicant's mental state – hardship through diminishment of business opportunities – cultural hardship – interests of the victim.

Migration Act 1958 s 200
Deng v Minister for Immigration and Multicultural Affairs [1999] AATA 386

REASONS FOR DECISION

31 October 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision made on 4 June 1999 by a delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant, Yoshimasa Ishibashi, under Section 200 of the Migration Act 1958.
The matter was heard by me on 10, 11, 12 and 14 April 2000 and 14 and 27 June 2000 in Brisbane. Written submissions were received from all parties. Mr Ishibashi was represented by Ms S Cool of Counsel instructed by Messrs Witheriff Nyst, Solicitors. The respondent Minister was represented by Mr M Belcher of the Australian Government Solicitor's Office. Ms K Gianni, the applicant's former wife, was a party joined and was represented by Mr B Thomas of Counsel instructed by Philippa Power and Associates.
Oral evidence was given at the hearing by the applicant; Ms K Gianni; Mr K Nishiguchi, the applicant's business partner; Mr D Gorlich, a friend and former employer of the applicant and Mr JA Jorgensen, an expert in Japanese culture. Medical evidence was given by Mr PJ Stoker and Doctors WJ Kingswell, G Apel and T Okada. The respondent called Ms A McGown, a Psychologist with the Woodford Correction Centre.
The following documents were taken into evidence:

Exhibit 1 "T" Documents
Exhibit 1A Supplementary "T" Documents
Exhibit 2 Statement of Yoshimasa Ishibashi dated 10.4.00
Exhibit 3 Statement of Kazuo Nishiguchi dated 7.4.00
Exhibit 4 Letter from applicant to Ms Gianni
Exhibit 5 Prisoner Request Forms
Exhibit 6 Bundle of Prison Certificates
Exhibit 7 Bail undertaking
Exhibit 8 Report of Anne McGown, Psychologist dated 6.8.99
Exhibit 9 Application for Community Release
Exhibit 10 Corrections Board's response dated 20.9.99
Exhibit 11 Statement of Dietmar Gorlich dated 11.4.00
Exhibit 12 Extract from Prison Medical File
Exhibit 13 Photograph of Ms Gianni
Exhibit 14 Transcript of Proceedings before Hall J – 2.3.98
Exhibit 15 Transcript of Court of Appeal Judgment – 29.5.98
Exhibit 16 Report of Mr PJ Stoker dated 21.7.97
Exhibit 17 Report of Dr JK Ziukelis dated 17.1.98
Exhibit 18 Report of Dr F Trueman dated 23.2.98
Exhibit 19 Prisoner's request form dated 30.9.99
Exhibit 20 Letter dated 12.6.98 alerting Mr Ishibashi to deportation proceedings
Exhibit 21 Statement of Ms Kim Gianni dated 3.4.00
Exhibit 22 Statement of Ms Kim Gianni to the Police dated 28.7.97
Exhibit 23 Transcript of committal proceedings – 2.10.97
Exhibit 24 Report of Dr G Apel dated 19.10.99
Exhibit 25 Report of De G Apel dated 7.4.00
Exhibit 26 Report of Dr WJ Kingswell dated 2.2.00
Exhibit 27 Report of Dr T Okada dated 5.2.98
Exhibit 28 Transcript of Police Interview on 16.7.97
Exhibit 29 Statement of John Jorgensen dated 7.4.00
Exhibit 30 Statement of Jason John Murakami dated 14.6.00
Exhibit 31 Progress Notes – Dr Heyman

Mr Ishibashi is 34 years of age and a citizen of Japan. He visited Australia on a working holiday in 1989. He met his wife during that stay and she travelled to Japan in January 1991 to marry him. He returned to Australia with his wife in May 1991. He has permanently resided here since. In 1993 he formed a company with Mr Nishiguchi for the purpose of trading in opal jewellery. They opened their first store in 1994. In March 1998 the applicant was convicted of one count of causing grievous bodily harm with intent to disfigure, the actual offence occurring on 16 July 1997. The applicant was sentenced to 6 years imprisonment which was reduced to 4 years on appeal. It is this conviction which brings him within the scope of Section 200 of the Migration Act.
The applicant Ministerial Direction is Direction 9 – General Direction – Criminal Deportation. The Direction states that the primary considerations are the expectations of the Australian community and, where an applicant is involved in a parental relationship with a child, the best interests of that child. The latter consideration does not apply in this case.
Issues to be taken into account when evaluating the protection of the Australian community include the seriousness and nature of the offences committed by the applicant, the risk of recidivism and the deterrent effect of deportation on other non-citizens.
Seriousness and Nature of the Offence
The applicant's crime is one which involves brutal violence and would be viewed as abhorrent by the Australia community. Ms Gianni gave evidence as to the following details of the event. The applicant had been acting strangely for 2 days. On the night of the incident he was very agitated and left their apartment to go and see his friend, Mr Gorlich. When he returned he was angry and accused Ms Gianni of having an affair. He yelled at her and approached her with raised hands and she pushed him away. He pulled the phone out of the wall and pushed the fire alarm so that the lift could not be used from that unit. He then ran out of the unit via the fire escape. Ms Gianni rang her friend on her mobile phone and went into the kitchen to hide the knives and then moved a chest of drawers in front of the fire escape.
The applicant returned via the lift and accused Ms Gianni of being on the phone to her boyfriend. He went into the kitchen and then returned to the lounge room. He ran at Ms Gianni and hit her repeatedly in the face. She fell to the floor and he knelt on top of her chest and started trying to strangle her. Somehow she managed to push him off and tried to move away. He came at her again and started biting her face. She put her hands up to stop him and he started biting her hands. He first bit at the right hand, then he grabbed her left hand and forced her little finger into his mouth. He continued to bite at her finger and pull at it while it was still between his teeth. When he finally let go, her little finger was only attached by a bit of skin. The applicant laughed at her and told her that "no-one can help you now". At this stage the body corporate manager and another resident came into the unit in response to Ms Gianni's screams. They had called the Police and took Ms Gianni downstairs. The applicant also got into the lift with them and when the Police arrived he had to be forcibly restrained. Ms Gianni's little finger was amputated 6 days later.
The Tribunal accepts Ms Gianni's evidence as a fairly accurate account of the event, given that people often find it hard to precisely recall very stressful situations. Her evidence is consistent with the facts of the offence as accepted by the Court at both first instance and on appeal.
The Tribunal does not accept Mr Ishibashi's evidence that his wife attacked him first. The injuries he claimed to sustain are not consistent with the medical report completed upon his reception at the Remand Centre. Nor does the Tribunal accept that in a joint fight Ms Gianni's hand come near his face and he just bit it or that it was simply an accident. In order to sever both muscle and bone the applicant must have bitten the finger in a very savage and sustained manner. The Tribunal found Mr Ishibashi to be quite evasive when giving evidence under cross-examination. His answers were clear and he responded well to questions in English during his evidence-in-chief. However, once cross-examination began, he claimed he was having trouble with the language and was vague with his answers, particularly when challenged as to his account of the events on the night in question. It is the Tribunal's view that the applicant sought to minimise his culpability in relation to the offence. I am also of the view that he exaggerated the level of hardship he would be likely to suffer if deported to his country of origin. He appeared to weigh up questions that were asked of him in order to assess whether his answers would potentially benefit him or not. As such, the Tribunal did not find Mr Ishibashi to be a credible witness.
Various medical opinions were put forward as to the reason behind Mr Ishibashi's bizarre behaviour around the time of the offence and his actual offending behaviour. These opinions varied from poor impulse control, to an anxiety disorder, to a schizophenoform psychosis of a brief duration. The key feature of all of these reports is that the description of the incident came from the applicant himself and this was quite at odds with the description accepted by the Criminal Courts and the Tribunal. The two main psychiatrists relied on at the hearing, Dr Apel and Dr Kingswell, did not see the applicant until over 2½ years after the offence was committed. They relied heavily on a report by Dr Okada, notes by Dr Heyman and a transcript of the Police interview in forming their diagnosis of a brief psychotic episode in the form of a schizaphenoform psychosis. Dr Okada is a General Practitioner, although he does have some interest and experience in the area of psychology. He saw the applicant in October 1997. He reported of one hallucination which the applicant related to him some months after it allegedly occurred and described some paranoid ideation which the applicant said he had experienced around the time of the offence and for a few days after being taken into custody. The transcript of the Police interview is absolute gibberish and can hardly form a sound basis for a diagnosis without a contemporaneous examination. It is quite reasonable that after being involved in such an intense interchange, firstly with his wife and then the Police, that the applicant was highly agitated and not making a lot of sense, without his being psychotic. In fact, irrationality is a common feature of domestic altercations.
Mr Stoker, a Psychologist, saw the applicant 5 days after the event and he found that the applicant was not delusional or suffering any other psychotic symptomatology. He agreed in evidence that the description of the applicant's behaviour provided by Dr Okada was consistent with a panic attack – delusions, feeling weak and cold and being suspicious of people around him – and was not necessarily indicative of a psychosis, particularly since it was not evidenced at his interview with the applicant.
Both Dr Ziukelis, who saw the applicant in December 1997, and Dr Apel on his first review of the applicant, came to the conclusion that the applicant suffered from an anxiety disorder and had been experiencing a panic attack. This was taking into account the applicant's behaviour before the offence, during the offence and after he was taken into custody, although they did not have Dr Okada's report.
It is the Tribunal's view that the applicant at most suffered from an anxiety disorder around the time of the offence. This explains his level of agitation, the somatic manifestations, his slightly altered perception of reality and his difficulty in conversing rationally. The evidence relied on to suggest that he was suffering from a brief psychotic episode is too tenuous, particularly when it is submitted that the psychosis has spontaneously resolved without treatment in the stressful environment of prison. Further, the theory that a psychosis which could prompt such a savage attack was undetectable by a psychologist who interviewed the applicant 5 days after the attack, but was easily noticed by a General Practitioner who interviewed him nearly 3 months later is just not credible.
It is the Tribunal's finding that while the applicant might have been in a heightened state of agitation and anxiety at the time of the offence, he was nevertheless aware of what he was doing. His actions on the night in question show a systematic terrorisation and isolation of his wife before he attacked her. Just because a person is angry to the point of being irrational does not mean that they are insane, nor does it reduce the seriousness with which the offence is viewed.
Risk of Recidivism
The Tribunal accepts that the applicant's risk of recidivism is quite low. His acts of violence seem to be predominantly related to his marriage. Although it is questionable what the actual level of remorse, as compared with regret, that Mr Ishibashi feels for the infliction of the injuries on Ms Gianni, it is clear that he does not intend to hurt her in the future. He made it clear that he accepts that the marriage is over and he wants to get on with his life. Whilst on bail he did not attempt to get in touch with Ms Gianni and when he saw her on the street he did not approach her. All of the psychologists and psychiatrists who assessed the applicant were quite confident that he was unlikely to re-offend. Ms McGown, a Corrective Services' Psychologist, formed the conclusion that Mr Ishibashi did not pose a risk to the community at large and the Tribunal concurs with that assessment.
General Deterrence
With respect to the general deterrent effect that Mr Ishibashi's deportation would have on other non-citizens, it is the Tribunal's view that it would be marginal. Although this is a particularly serious crime, Mr Ishibashi only has a few friends who would know of the deportation and it is unlikely to be publicised much further than that.
Community Expectations
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, even where there is only a low risk of recidivism. This aspect does not preclude or obviate the necessity to weigh up all pertinent considerations (see Deng v Minister for Immigration and Multicultural Affairs [1999] AATA 386) but it highlights the relevance of the views of the Australian community with respect to particular crimes. This crime is one which the Australian community would find truly repugnant, particularly in terms of its brutality and the injuries inflicted. It was a savage attack on the applicant's wife in her own home, a place where she should have been able to feel safe.
The secondary considerations include the degree of hardship suffered by the applicant and by other Australian citizens or permanent residents.
It is accepted that the applicant would suffer some hardship if he were deported. He has been living in Australia for a number of years and he has a business here as well as some friends. It is true that the applicant may have greater difficulty obtaining employment upon his return to Japan due to the nature of the labour market and his earning capacity is likely to be diminished. However, his ability to speak English fairly well and his superior selling skills should assist in his reintegration into the Japanese workforce. There may be some tension in the family upon his return, given that he relinquished his rights and duties as the eldest son when he permanently moved to Australia. However, the applicant has said that he had a close relationship with his mother and that the family is fairly well off by Japanese standards. As such, they can offer him accommodation and are likely to be supportive of him, although there will, of course, be a period adjustment upon his return.
With respect to the applicant's business, he would be likely to make more money by remaining in Australia and continuing to run the business. However, if he returns to Japan he could sell his share in the business and regain his capital investment or remain an investment partner and receive dividends from the company's profits. While this may be a less than ideal outcome for the applicant, it would not result in a forfeiture of his business interests or qualify as a cause of severe hardship.
The applicant submitted that his return to Japan as a result of deportation would result in his being socially ostracised. As already stated, many members of the Australian community would be quite horrified by the details of his crime and he could suffer social ostracism in Australia, as well, upon his release. His Counsel also submitted that if it were found out that he suffered a mental illness, this ostracism would be compounded. She further submitted that should there be a relapse of his alleged psychotic illness he would effectively be institutionalised and treated very badly as there is a significant stigma attached to mental illness in Japan. The applicant cannot have it both ways. It was submitted that his risk of recidivism was low as his mental illness was completely resolved and unlikely to recur. Yet, in relation to hardship, it is submitted that recurrence of the illness is of sufficient likelihood that potential medical treatment or the lack thereof in Japan should be given significant weight. The Tribunal is of the view, given the medical evidence, that the applicant is not suffering from any ongoing mental illness which will require treatment in the future. Therefore, the state of the medical profession in Japan is of no significant relevance.
Returning to a country from which a person has been absent for a number of years will always require a period of adjustment and will result in some level of hardship. It may be that as a result of cultural factors this hardship will be increased in Mr Ishibashi's case. However, it is not of an extreme or even severe nature. That he will be unlikely to be as prosperous or independent as he is in Australia is simply an unfortunate consequence of his criminal actions. One cannot expect to enjoy the hospitality of and opportunities in Australia when one breaches both Australian law and community standards in such a serious manner.
Mr Nishiguchi will suffer some hardship as he will not have Mr Ishibashi's assistance with running the business. However, the hardship to Mr Nishiguchi has mainly been the requirement of keeping the business running for the applicant's return. He has felt obliged to keep the business going and has been unable to bring in another partner or a manager as there would be no room for them once Mr Ishibashi re-commenced working there. If Mr Ishibashi were deported, then there will be a finality to the waiting and Mr Nishiguchi will be able to make decisions as to whether he wishes to continue in the business and if he does, he can organise appropriate staffing arrangements to reduce his work hours. It is true that he will also suffer some emotional hardship due to the loss of a friend and a work colleague. Mr Gorlich is another friend who will suffer some emotional hardship due to the loss of a friend.
Ms Gianni, the applicant's former wife, would not suffer hardship if the applicant were deported. She gave evidence that if he is released back into her community she will have to move as she lives in fear of him. It is the Tribunal's assessment that objectively she need not fear the applicant. However, this fear is very real in her mind. She has suffered extensive psychological trauma as a result of the applicant's crime and these effects are still with her. His continued presence in her community, with the opportunity for chance encounters, would cause a deterioration of her mental state. Her right as an Australian citizen to live in this country without fear of her former husband is a factor which deserves consideration by this Tribunal.

Despite a low risk of recidivism and some hardship being suffered by the applicant if he were deported, these factors do not outweigh the gravity of the crime committed and the expectations of the Australian community. For these reasons the Tribunal affirms the decision under review.
I certify that the 27 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  10, 11, 12, 14 April, 14 and 27 June 2000
Written submissions                 20.9.00
Date of Decision  31.10.00
Counsel for the Applicant        Ms S Cool
Solicitor for the Applicant         Messrs Witheriff Nyst
Solicitor for the Respondent    Mr M Belcher, Australian Government Solicitor's Office
Counsel for Party Joined         Mr B Thomas
Solicitor for Party Joined          Philippa Power and Associates

[2000] AATA 948

31 October 2000

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Deportation

Abhorrence of Crime

Criminal Liability