Kostopoulos and Minister for Immigration and Multicultural Affairs - [2001] AATA 34

DECISION AND REASONS FOR DECISION [2001] AATA 34

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N 2000/529

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TERRY KOSTOPOULOS
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date23 January 2001
PlaceSydney

Decision      The decision under review is set aside and substituted with a decision not to deport Mr Kostopolous.
  .       (Sgd Dr D Chappell)
  .............................................
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – criminal deportation – citizen of Greece – entry into Australia aged 13 – conviction for one drug related offence in 1979 – conviction for two armed robberies – consideration of seriousness of the offences – considered very serious – consideration of risk of recidivism – deportation warnings issued - suffers serious medical conditions – leg ten centimetres short on left side - requires crutches – no recent history of serious offending - risk low – prospects for rehabilitation good – consideration of deterrent factor – little general deterrent value – consideration of hardship – consideration of conditions in Greece – methadone treatment for pain relief – treatment not available in Greece – hepatitis B and C – requires further orthopaedic treatment – doubt as to accessibility in Greece – consideration of family and associated ties – family would suffer real hardship – ties with Australia strong – weighing of factors against deportation – decision not to deport
Migration Act 1958 s200
Hong v Minister for Immigration and Multicultural Affairs (1999) FCA 1567
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Bustescu v Minister for Immigration and Multicultural Affairs (2000) FCA 698
Lau v Minister for Immigration and Multicultural Affairs (2000) FCA 698

REASONS FOR DECISION

BACKGROUND Application Dr D. Chappell, Deputy President

Theodore Kostopoulos, the applicant, seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s200 of the of the Migration Act 1958 (the Act), to deport him from Australia. The Tribunal's jurisdiction to review that decision is granted by s500(1)(a) of the Act.
Dr Steven Churches, of counsel, represented Mr Kostopoulos on a pro bono basis. Mr Kostopoulos appeared in person and gave personal testimony to the Tribunal. Ms M Andrikopoulos, the applicant's sister, testified on his behalf:
Ms Juanita Kapel, a departmental advocate, represented the respondent at the hearing. The following witnesses testified on behalf of the respondent:
Mr S Griffiths
Dr P McGrath
Dr Mastrokostas
Mr P Long
The Tribunal had before it documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975 (the T, S and FS documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.     Description    Date
A1      Letter from L. Kostopoulos 25/5/2000
A2      Letter from A. Kostopoulos Undated
A3      Letter from M. Andrikopoulos       23/5/2000
A4      Letter from Greek Orthodox Community of NSW Ltd, Welfare Service        25/5/2000
A5      Medical report of Dr F.J. McLeod 10/11/1987
R1      Medical report of Dr P.J. McGrath 24/8/2000
R2      Fax from Australian Embassy, Athens to Juanita Kapel attaching letter from Dr Y. Mastrokostas 20/10/2000

Chronology of events

The following general facts and chronology of events which led to the present proceedings were not a matter of dispute between the parties. Mr Kostopoulos was born in Greece, on the island of Patra, on 4 January 1957 and arrived in Australia on 8 July 1970, aged 13 years. At that time the applicant was a permanent resident. Mr Kostopoulos' family in Australia consists of his mother, three siblings and a son, Ilias Kostopoulos, who was born in December 1978 (T: 24). Mr Kostopoulos also has a wife from whom he is divorced.
Mr Kostopoulos' first contact with the criminal justice system occurred in 1974. That contact consisted of a conviction at the Minda Children's Court on 1 February 1974 of an offence of break enter and steal. Mr Kostopoulos was committed to an institution by that court. In June of that same year Mr Kostopoulos was again committed to an institution, this time by the Albion Street Children's Court for two stealing offences and three counts of malicious injury.
Mr Kostopoulos' first contact with the adult criminal justice process occurred in April 1975. He was convicted in Paramatta Local Court for a stealing offence and fined $150.00 as well as an additional $50.00 in compensation. Mr Kostopoulos' subsequent list of criminal convictions is shown in Attachment 1.
On 9 March 1979 Mr Kostopoulos was convicted of his first deportable offence. That conviction was for the offence of supply a prohibited drug (heroin) and he was given a sentence of six years hard labour with a non parole period of two years six months. Following this conviction the respondent's officials prepared a report concerning Mr Kostopoulos' eligibility for deportation (T: 55-63) (the 1981 report). The 1981 report noted the following factors weighing in favour of or against deportation:
Kostopoulos' misconduct in Australia commenced such a short time after his arrival that the Australian community could not be held completely responsible for his behaviour. On a number of occasions he has been given the opportunity by the courts to alter his lifestyle but has not done so. It is Government policy to deport in the absence of the most compelling cirucumstances [sic] those persons convicted for involvement in the production, distribution, cultivation or trafficking of illicit drugs. The offences in this case, involve the supply of heroin coupled with escape from custody and possession of a firearm. There is a risk of recidivism to be perceived from his lengthy criminal record from an early age which culminated in the serious offences for which he is now imprisoned, and from his somewhat unsatisfactory attitude at interview and his earlier dishonesty in court. These facts, in themselves, present a strong argument in favour of deportation.
As indicated above, however, policy does provide that in all cases where deportation is to be considered as a consequence of any criminal offences account be taken of any compelling circumstances which might exist. Such circumstances do exist in Kostopoulos' case in that –

he arrived in Australia with his parents 11 years ago at the very young age of 13;
his parents, brother and 2 sisters still live here and have offered their assistance;
he has no one [sic] in Greece apart from maternal grandparents;
his parole officer considers that he appears to have the capacity to avoid further conflict with the law and evidently is of the opinion that he can successfully complete a period of parole as his release for that purpose has been recommended;
in view of the present in Australia of his family any prospects he might have for rehabilitation must be better here than in Greece where he would have little support.
In the light of all of the above factors, despite Kostopuulos' [sic] unenviable criminal record, I am inclined to the view that the argument for deportation is outweighed (albeit marginally) by the facts of his young age on arrival, the presence here of all of his immediate family and the somewhat favourable parole report in his favour.
(T: 62-63)

Following the determination that Mr Kostopoulos should be allowed to remain in Australia, the Department issued the applicant with a warning (T: 64). That letter stated that Mr Kostopoulos had as a result of his conviction been rendered liable for deportation. It further encouraged Mr Kostopoulos to "look to the future with the resolve of becoming a worthy member of the community" (T: 64). Written in hand writing at the bottom of the warning letter before the Tribunal is the note:
Verbal warning given 4/2/82 & this letter handed to him
[signed] 4/2]
(T: 64)

In 1985, Mr Kostopoulos was convicted of a further deportable offence, robbery being armed (2 counts) and also the offences of break enter and steal and attempt to break enter and steal. Mr Kostopoulos received a sentence of nine years penal servitude for the first offence, a sentence of four years penal servitude for the second offence and four years penal servitude for the third offence. The sentences were all served concurrently and the non parole period was five years (T: 93).
In 1991, Mr Kostopoulos was convicted of a further offence. That offence was robbery whilst armed and the applicant received a gaol term of eight years with an additional term of two years and eight months (T: 94). In 1993, Mr Kostopoulos' appeal against the severity of that sentence was refused by the Court of Criminal Appeal (T: 94).
In 1999, Mr Kostopoulos committed further offences. These were the offences of larceny (five counts), custody of items suspected stolen (2 counts) and one count of receiving goods. Mr Kostopoulos was sentenced to complete the remainder of the additional term – eight months. These offences were not deportable offences.
The deportable offence for which Mr Kostopoulos was convicted in 1985 and the conviction sustained by Mr Kostopoulos in 1991 did come to the attention of the Department of Immigration and Multicultural Affairs. It is necessary to outline the manner in which these offences were subsequently dealt with by the Department in some detail.
The first warning letter issued by the Department to Mr Kostopoulos has been discussed above (see paragraph 9). Subsequent to that letter being issued in 1982, Mr Kostopoulos did not come to the further attention of the Department until 1995 when the applicant was again considered for deportation. The deportable offence which formed the basis for this reconsideration was that committed by Mr Kostopoulos over ten years before, robbery being armed (2 counts) and for which a conviction was made in 1985 (see paragraph 10). The 1995 report explained why Mr Kostopoulos' eligibility for deportation had not been considered earlier in the following way:
Mr Kostopoulos would normally have been reconsidered for deportation on the basis of these convictions in 1985 but they were not brought to the attention of the Department at that time
(T: 69)
The 1995 report also made clear that Mr Kostopoulos was not eligible for deportation on the basis of the conviction sustained in 1991 (see paragraph 11) because, in the words of the report: "[t]hese offences are NOT DEPORTABLE OFFENCES because at the time of the commission of these offences (1 September 1990) Mr Kostopoulos had accumulated over 10 years lawful permanent residence" (T: 69 emphasis in the original).
The 1995 report went on to list factors in favour of and weighing against deportation in the following manner:
a) FACTORS IN FAVOUR OF DEPORTATION
i) Criminal history dating back to 1974
Mr Kostopoulos has been convicted of 8 deportable offences. Three of those offences, involving selling heroin and armed robbery, are classed as serious offences under Criminal Deportation Policy. He is currently serving 8 years imprisonment on 2 further Armed Robbery offences.
The criminal history of Mr Kostopoulos must weigh very heavily against him
(ii) Previous warning administered in 1982 that went unheeded
(iii) Lack of contribution to the Australian community
When Mr Kostopoulos is eligible for release in August 1998 he will have resided in Australia for just over 28 years. He will have spent 15 years and 5 months of those 28 years in custody. His criminal behaviour has imposed a considerable financial and social burden on the community. He has been a liability to a community that was prepared to offer him a new life at the age of 13
iv) High risk of recidivism
The latest parole report on Mr Kostopoulos provides some indication that he may ultimately be doing something constructive to turn his life around. Since September 1994 Mr Kostopoulos has been receiving counselling from a prison psychologist following a Drugs in Urine misconduct charge recorded against him. The psychologist considers that Mr Kostopoulos is genuine in wanting to understand his behaviour and to make changes in his life. Since counselling began wing officers have reported positive changes in the attitude of the inmate
However, when one looks at the total picture it is difficult to feel optimistic about Mr Kostopoulos''s [sic] prospects of rehabilitation. His criminal record speaks for itself and his criminal behaviour has shown little sign of abating since 1974. He has abused heroin and it was only as recently as September last year that a drug misconduct charge was recorded against him in prison. He could easily have been ordered deported in 1981 as the offence (selling heroin) was a serious offence. He was given a second chance and issued a warning. Rather than learn from this experience he continued to re-offend committing 6 more deportable offences. His latest armed robbery offences were committed at a time when he was barely off parole in respect of quite similar offences
Mr Kostopoulos has the continuing support of his family but it is difficult to place much emphasis on this factor. The family has consistently supported Mr Kostopoulos over the years but this support has just as consistently failed to positively influence the behaviour of Mr Kostopoulos
Mr Kostopoulos has been afforded many chances to get his life in order but has invariably failed to do so. He would need to demonstrate in the community over an extended period of time that he could live a law abiding lifestyle before one could confidently predict that he would not re-offend. At this point in time the risk of recidivism must be assessed as high
FACTORS AGAINST DEPORTATION
i) Residence in Australia almost continuously since 1970
Mr Kostopoulos migrated to Australia with his family in 1970 at the age of 13. He returned to Greece for 1 month in 1977 to see his grandmother and this has been his only absence from Australia. He finished his schooling in Australia and all his adult relationships have been formed in this country
There is no doubt that return to Greece would impose considerable hardship on Mr Kostopoulos. He would be returning to an unfamiliar environment even allowing for the fact that he still speaks Greek and writes a little Greek. He has nobody to assist him in resettlement in Greece and would be separated from his family. He would need to re-establish himself in his country of birth and this may prove difficult without family support, an absence of work skills and a leg injury that could seriously jeopardise any chance of future employment
(ii) Very strong family ties in Australia
All of Mr Kostopoulos's [sic] immediate family reside in Australia. They have indicated their unqualified support for his continued stay and are strongly opposed to any thought of deportation
Since the death of his father in 1990 Mr Kostopoulos has assumed the role of family head and is expected to take care of his mother when he is released in 1998. His mother is in ill health and currently resides alone in a Housing Commission home. Family members have stated that deportation of Theodoros will just about kill their mother. Her health has deteriorated since she has learnt that her son is once again going to be considered for deportation. She has gone through a great deal of trauma over the years having to witness Theodoros serve increasing periods of imprisonment and her second son now having to also serve a term of imprisonment. Deportation of her eldest son would be the last thing she would need at this stage in her life
It is evident that deportation will impose considerable emotional hardship on all the family, particularly his mother
(iii) Deportation will effectively terminate any possibility Mr Kostopoulos has of rebuilding a meaningful relationship with his son
(T: 81-83)
The 1995 report concluded with a recommendation that a deportation order be made for Mr Kostopoulos. That recommendation was ultimately rejected by senior officials within the Department with the reasons for that rejection written in hand writing on the side of the report. Those reasons were as follows:
I have not accepted the recommendation for the following
(a)Although a warning was issued to Mr Kostopoulos in 1981/82 it appears no further contact made, despite offences, until 1994. Mr Kostopoulos while technically suspect must have thought he was 'in the clear'.
(b)there are encouraging signs of a desire to … relationships with his son, de-facto & mother. These must be given great weight and a chance to succeed.
Mr Kostopoulos's [sic] record suggests there is a … likelihood of re-offence. I hope this is not the case. I want Mr Kostopoulos to be counselled very directly.
(i)     he is and will remain subject to possible criminal deportation
(ii)     He has been warned before & could have been deported on several ocassions [sic]
(iii)    A breach of parole or re-offence will, subject to the decision maker, likely result in deportation
This should be delivered in writing.
We need to monitor Mr Kostopoulos [sic] progress carefully.
(sgd) M. Sullivan
6/4/95
(T: 86)
On 8 May 1995, Mr Kostopoulos was issued with a second warning letter (T: 87). The second warning letter referred to Mr Kostopoulos first deportable offence and the warning that had been issued to him in that regard. The letter then stated that "[f]ollowing your subsequent convictions for a number of further offences it was decided to reconsider the question of your deportation" (T: 87). No mention was made in the second warning letter to the 1985 conviction or any other subsequent conviction. The following warning was given:
… The delegate wanted to make it quite clear that should you commit a further offence or breach the conditions of your parole after your release in 1998 the question of your deportation will be considered once again. The delegate wanted it clearly understood that you can expect to face deportation should your case be considered for a third time. You should heed this warning and moderate your behaviour accordingly.
(T: 87)
On 17 November 1999, the Department issued Mr Kostopoulos with a third warning about his possible liability for deportation. That letter stated:
Dear Mr Kostopolos [sic],
Warning of Possible Liability Under Section 200
of the Migration Act 1958
This letter is to inform you that as a result of your conviction(s) for Robbery whilst Armed, Attempt Armed Robbery on 22/10/1991 at Sydney – City District Court you may be liable for deportation from Australia pursuant to Section 200 of the Migration Act 1958 (the Act).
I enclose relevant extracts from the Act on deportation liability and a copy of the Government's Criminal Deportation Policy. I suggest that, in your own interest, you study these papers fully. You may wish to provide material to demonstrate why you should not be deported. However, you will be interviewed before a decision to deport you is made.
(T: 98)
Mr Kostopoulos was interviewed by the Department on 13 January 2000. When asked to give an "[o]ffender's report of current offence", Mr Kostopoulos provided the following written answer:
I went shopping with my then girlfriend, we paid for some items in the trolley but not all of them. I took all the blame for stealing the items. I was on drugs at the time – I was taking Serapax, I took took [sic] more pills than I should have. If it washt [sic] for the drugs (tablets) I would not have done it.
(T: 104)
On 28 February 2000, a third report was prepared by the Department in order to consider Mr Kostopoulos' liability for deportation (T4) (the 2000 report). That report stated that liability for deportation arose as a result of Mr Kostopoulos' convictions in 1979 and 1985 (T: 25). The 2000 report makes clear that Mr Kostopoulos' more recent offences, the 1999 offences for give custody of items suspected stolen, larceny and receiving were not deportable offences (T: 25). After noting that Mr Kostopoulos has previously been considered for deportation, the 2000 report makes the following comment:
Mr Kostopoulos was again considered for deportation on the basis of his criminal conviction on 4 April 1985 for Robbery Being Armed, for which he was sentenced to nine years penal servitude with a non parole period of five years. This is the same conviction upon which this current deportation order is based.
On 10 April 1995 the Minister's delegate decided not to order the deportation of Mr Kostopoulos but that he be issued with a warning. On 8 May 1995 Mr Kostopoulos was issued with a warning and acknowledged receipt of that warning.
(T: 27)

The 2000 report lists the following factors for and against deportation:
(a)       Factors in favour of deportation
(i)        Mr Kostopoulos' deportable offence. (Primary consideration)
(ii)       Two previous warnings issued to Mr Kostopoulos. (Primary consideration)
(iii)      His risk of recidivism being assessed as high. (Primary consideration)
(b)      Factors against deportation
(i)Mr Kostopoulos will feel a significant degree of emotional and financial hardship if he is deported from Australia. (Other consideration)
(ii)Mr Kostopoulos' mother will feel a significant degree of emotional and financial hardship if he is deported from Australia. (Other consideration)
(iii)Mr Kostopoulos' son and grand daughter will suffer hardship if he is deported from Australia. (Primary consideration)
(iv)Mr Kostopoulos' sister and other siblings will suffer emotional hardship if he is deported from Australia. (Other consideration)
(T: 31-32)
On 29 March 2000, a deportation order was issued on the basis of Mr Kostopoulos' conviction in 1985 for robbery being armed.
LEGISLATION AND POLICY
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 ten 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 (s201). As already noted, Mr Kostopoulos falls within the framework of these provisions as a result of his convictions in 1979 and 1985.
It is the General Direction under s499 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) that requires consideration by the Tribunal in addressing the issues involved in Mr Kostopoulos' case. This is a document which the Tribunal is obligated to give significant weight.
The 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 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:
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.
(Policy Direction: paragraph 6)
With regard to the consideration of the best interests of the child the Policy Direction makes is clear that it is only the "best interests of any children aged less than 18 years" that the Tribunal is obligated to take into account (Policy Direction: paragraph 16). Thus in Mr Kostopoulos' case this issue os not of relevance since his sole child is now well over this age limit. With regard to the expectations of the Australian community the Policy Direction states in part, that:
… There are two aspects to community expectations:
the expectation that the community will be protected and not put at risk; and
the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
(Policy Direction: paragraph 8)
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:
the seriousness and nature of the crime;
the risk of recidivism; and
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 is examined concerning certain other factors which the Policy Direction indicates require consideration by the Tribunal.
EVIDENCE
Seriousness and Nature of the Crime

The Tribunal does not have before it a full account of the circumstances surrounding any of the offences committed by Mr Kostopoulos throughout his criminal career, including the deportable offences. With regard to the conviction sustained by Mr Kostopoulos for his first deportable offence the 1981 report prepared by the respondent's officials contained the sentencing remarks of judge Muir that:
This case undoubtedly has some unusual features. The evidence clearly tends to the view, which I accept, that the accused had been peddling drugs, in particular, heroin. To what extent it is difficulty to say. Further, the evidence tends also to establish that he was associated with another man by the name of Kastounos.
The unusual circumstances are that obviously the police officers concerned had received information; they went to the accused's premises with a search warrant; they located a certain amount of the drug on the premises but in fact did not find the bulk of heroin which was there, which was a considerable amount. In fact that amount was located after the accused had been taken to Revesby police station and then said to the police that he wished to get off the 'scene'; that there was some heroin in his house; that he returned with the police and produced the bulk of the heroin.
It is true that had he not done this it would not have been found. A search had been completed and the drug was not located, and in all probability, he would have been dealt with summarily for that portion of the heroin which had been found.
The other unusual features are these: that during last year he gave evidence, which he on oath here said was false, in support of the man Kastounos on a charge of his possessing. I do not know the precise language of the charge but it involved his possessing heroin. He gave evidence which he said was false, that Kastounos had not left heroin at his premises, or words to that effect. He gave evidence here that he knew nothing of the presence of the large amount of heroin. His wife gave evidence that it had been left there in his absence by this man, Kastounos.
The jury's verdict would tend to indicate that they accepted the Crown's submissions, that the evidence given in the case against Kastounos was not false, but probably accurate, whereas the evidence before this Court was false. But the verdict does not necessarily lead to that conclusion, but it was part of the evidence before the jury here.
He said, of course, and his wife gave evidence of her communication to him of threats which involved serious threats to his life, and he said this was the reason he initially gave the false evidence.
…
I do, however, think the fact that he himself produced the heroin, having said he wanted to get off the 'scene', does indicate he wanted to. No doubt he saw an advantage to himself in that, because it would have been obvious to him that the police gained their information somewhere because they came to his premises with a warrant. That is a very strong circumstance in his favour, but I just could not take the course suggested by Mr Stratton on his behalf.
I do, however, intend to impose a sentence which, in view of the fact I have the view he was peddling in a serious way, is much less than what ordinarily would be the case. I could not in any sense consider going to the extent put to me on his behalf.
(T: 56-58; FS: 4-7)
The only description that was available to the Tribunal concerning the events which led to Mr Kostopoulos' arrest in regard to the deportable offence for which he was convicted in 1985 was that provided by the applicant himself under cross examination by the respondent. When asked to explain the circumstances surrounding the commission of that offence the applicant replied:
… my brother and I we went out one night and we had a few drinks and – and he had a toy pistol, a toy, a little toy gun, a pistol, a little toy one it was plastic and he said how about we go over to this service station and we get some money. We didn't have any money at the time so we went over there and said to the – the attendant that we wanted his money with the toy pistol and he chased us from the garage and we ran away, got in the car and took off. That's what the offence was.
(transcript 23 October 2000: 14)

When questioned about the other convictions sustained in 1985, Mr Kostopoulos' did not dispute his involvement in the break enter steal but he did dispute his conviction for attempted break enter and steal (transcript 23 October 2000: 14-15). With regard to the latter conviction Mr Kostopoulos told the Tribunal that his plea of guilty at the time was false and entered only on the advice of legal representative (transcript 23 October 2000: 15).

In relation to the his conviction in 1991 for armed robbery the Tribunal has before it the sentencing remarks of Judge Court who stated:
… Notwithstanding the offender's denial at trial of any involvement, the jury clearly accepted the Crown's case against him and I record I was not at all surprised that they did so.
          Very shortly stated, that case was that the offender in company with another offender, who to date has not been apprehended, entered the reception area of the Travelodge Motel at Camperdown and demanded money from both the receptionist and also a male person then in the process of checking in.
          The co0offender was at the time armed with a knife with which he menaced both the receptionist and the guest. I accept that the present offender did not personally have that knife. The jury has however by its verdict, recognised the common purpose obviously involved.
          The offender is now aged thirty-four. He has a criminal record dating back to 1974 when he was aged but seventeen. He was first sentenced to imprisonment at the end of 1975 then in respect of a drink drive offence. He has subsequently been sentenced to and served far more substantial sentences, the details of which I see no need to relate. Significantly for my purposes, he was in this Court in April 1985, sentenced to terms of imprisonment aggregating nine years with a non-parole period of five years in respect of offences which included two offences of armed robbery.
          In relation to those last mentioned sentences he was released on parole and those sentences, on the material tendered to me, expired by remission on 24 August 1990. That is about one week before his commission of the offences with which I am required to deal.
…
          There can however be no denying the seriousness of the offences. They attract a statutory maximum penalty of penal servitude for twenty years. In addition to that primary consideration, the offender's prior criminal history entitles him, in my opinion, to virtually no leniency at all. He was only just barely off parole in respect of quite similar offences.
(S22: 39-41)

Mr Kostopoulos told the Tribunal that he was still denying his involvement in the offence of armed robbery (transcript 23 October 2000: 15).

Again, in relation to Mr Kostopoulos' most recent offences the Tribunal had before it only that information provided by the applicant himself. Mr Kostopoulos was asked by the respondent's solicitor to explain his involvement in the shoplifting incident to which the applicant gave the following reply:
Like I said after being in gaol for such a long time and I met up with a lady that I was living with and taking tablets with and we were going to do shopping and she would take things from the shopping, from the market and put them in the trolley and then would not pay for them and when we did get caught by security I told them I done it.
(transcript 23 October 2000: 16)

When asked to explain what was actually stolen in the shoplifting incident Mr Kostopoulos replied:

I think it was it might have been some – some coffee, some deodorant, maybe shampoo, things like that, just there was some clothing that she took at one time, things like that. Just $25 worth, $18 worth. Actually the magistrate mentions how petty it was and he said I cannot understand you Mr Kostopoulos, he said, why you – you would do something like that and then he looked at the police report and saw that I was on medication that I was on and he admitted that by saying that at the time I wasn't – I wasn't straight, is the only word I can come up with.
(transcript 23 October 2000: 17)

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:
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;
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;
the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably be expected to make.
(Policy Direction: paragraph 13)

Criminal Record

It was contended by the respondent that Mr Kostopoulos received two prior warnings about the risk of deportation prior to the Minister's delegate's decision to deport Mr Kostopoulos on 29 March 2000. Mr Kostopoulos denied having received the warning issued in 1982. In relation to that warning Mr Kostopoulos told the Tribunal that:
…I was not living at home and I understand that – that piece of – document was given to my father. I was not living at home at the time. I was not aware of that – of that – that warning until Ms Kovera told me at – at – recently, at Silverwater Prison. I told Ms Kovera that, that I was only aware of one warning which was in 1995. For the offence that I committed in – the offence that I was found guilty on in 1990.
(transcript 23 October 2000: 19)

As the above quotation indicates, Mr Kostopoulos did not deny receiving a warning letter in 1995, although according to his own testimony he believed the warning pertained to offences committed by him in 1990.

It was further contended by the respondent that Mr Kostopoulos' history of criminal offending, dating back to 1974 when he was first convicted of an offence in the children's court, did bring him within the parameters of paragraph 13(b) of the Policy Direction. As noted earlier Mr Kostopoulos disputed his conviction for armed robbery in 1991 but did not otherwise dispute the nature of his criminal record (transcript 23 October 2000: 16). There was, however, significant dispute between the parties about the nature and scope of Mr Kostopoulos' prospects for rehabilitation (Policy Direction: paragraph 13(c)).
Performance in Prison
A pre-release report dated 26 May 1998 from the Probation and Parole Service of the New South Wales Department of Corrective Services contained the following information pertaining to Mr Kostopoulos' performance in prison:
Previous Response to Supervision
Mr Kostopoulos has a history dating back to 1975 with this Service. Early response to supervision was poor because of unstable accommodation, dysfunctional relationship issues, drug abuse and offending behaviour.
He was last released to Parole in December, 1988 and was supervised at the Parramatta District Office. During this supervision he was stable, reporting regularly and attending Westmead Hospital for medical treatment, pain control and psychiatric counselling for his medication. He successfully completed this supervision.
Gaol History
Mr Kostopoulos has been incarcerated in Parramatta, Lithgow, Bathurst and Windsor Correctional Centres. This sentence, his prison record is good, with only one internal charge recorded against him. This was for "Drugs in Urine" in September, 1994 at Bathurst Gaol. He admits this offence, stating that he took sleeping pills that were not prescribed for him.
Mr Kostopoulos has positive reports for both work and conduct. At Parramatta, Lithgow and Bathurst Correctional Centres. At Bathurst after returning the positive urine, he was urged to undertake counselling. He attended with the psychologist who reports that he engaged willingly in counselling and addressed issues relating to his medical condition and pain management, relationships and his family. Mr Kostopoulos states that this counselling was valuable to him in that it helped him to accept his medical condition and circumstances of his personal life.
Mr Kostopoulos came to the John Morony Correctional Centre in March, 1996. His employment and programme participation has been excellent. He has completed a Small Motor Maintenance Certificate and participated in adult education concentrating on reading and writing. His employment record is excellent and he is the chief animal carer in the wildlife centre at A.W.A.R.E.S. Since March, 1997 he has lived alone at the centre responsible for the security of the animals at night and the special feeding programmes required by some of the rescued animals. He loves his job and has taken a special interest in the birds and he is planning to continue breeding birds on release.
Mr Kostopoulos has been on day and weekend leaves for the last fifteen months. His older sister has acted as his sponsor and he has spent his leaves with his family. Because of where he is housed at this centre he is considered part of the Unit 6 Transitional Programme and attends shopping each week at Penrith. His other contacts with the community include accompanying officers on animal rescue trips and attending the Pet Expo with the Corrective Services display.
…
Assessment
Mr Kostopoulos presents as a mature, happy and friendly man. He has the support of his family for release. He has a commitment and plan to manage his own medical care and pain. He also has self esteem [sic] and confidence in himself to successfully complete parole supervision.
Recommendation
It is recommended that Mr Kostopoulos be released at the expiration of his minimum term. It is further recommended that his medical condition be monitored by the supervising officer.
(S: 52-54)
Mr Steven Griffiths, a probation and parole officer with the Department of Corrective Services based at Silverwater Correctional Centre, also gave testimony by telephone to the Tribunal. Mr Griffiths told the Tribunal that he had prepared a pre-release report on behalf of Mr Kostopoulos in March 2000. That report was not put before the Tribunal but Mr Griffiths read certain portions of the report onto the official transcript. Mr Griffiths told the Tribunal that in his assessment and recommendation he had written:
Mr Kostopoulos has progressed well through this period of incarceration, attracting no prison offences and to the best of his ability addressing his offending behaviour. Since returning to custody in August 1999, Mr Kostopoulos has participated in weekly individual counselling with the alcohol and other drug services. The inmate has also instigated and facilitated a methadone support group conducted through the alcohol and other drug services here at the Silverwater Correctional Centre.
…
In the past, Mr Kostopoulos has been released to parole and on the most recent occasion was on parole for just under 12 months.
…
When looking through past probation and parole records on Mr Kostopoulos it was disconcerting to see that the past assessments and recommendations are not dissimilar to the above in that he had been addressing his offending behaviour and progressing quite well. Notwithstanding this Mr Kostopoulos has made a genuine effort to address his drug problem during this period of incarceration. Taking into account all the above, parole is recommended for Mr Kostopoulos, conditional upon him accepting drug and alcohol counselling and urinalysis.
(transcript 23 October 2000: 62)

Mr Griffiths told the Tribunal that at the time of writing the report he was aware that when Mr Kostopoulos was released on parole after a previous term of imprisonment, he re-offended almost immediately and was convicted of armed robbery (transcript 23 October 2000: 63).

When asked in cross examination whether he viewed Mr Kostopoulos as a "danger to the Australian" community, Mr Griffiths told the Tribunal that:
All my dealings with Mr Kostopoulos in custody have been very positive, very good, he has complied, always kept appointments. He – Mr Kostopoulos manages very well in custody and it seems from what I can remember of the report and the case history, he manages very well on parole initially, but the problem has been after awhile, that in the past, he would return to illegal behaviour and – in fact going back to what his drug and alcohol worker had told me – that the counselling that Mr Kostopoulos had undergone, hopefully, was addressing that offending behaviour. Minimal threat to – to Australian society I would suggest. You can never be sure 100 per cent is what I am saying, Dr Churches, but other than that I say, you know: all my dealings with Mr Kostopoulos have been very positive.
(transcript 23 October 2000: 64)

The Tribunal also asked Mr Griffiths to explain the general effects of aging on the criminal behaviour. Mr Griffiths responded:
… it seems that as adults reach their middle age that – I wouldn't say the enjoyment of anti-social behaviour – but certainly the indulging in criminal activity, or anti-social behaviour seems to slip away. It also seems that people who have been involved in illegal drug use too, it seems to slip away as they hit their – hit mid-life. I don't know if there is any – anything other than anecdotal evidence to support that offhand but, yes, it seems to be a popular belief.
(transcript 23 October 2000: 65)

Drug Usage

The Tribunal also had before it a "Drug and Alcohol Report" written by Mr Kostopoulos' drug and alcohol counsellor, Mr Peter Devine. That report was dated 2 February 2000 and stated the following:
To WHOM IT MAY CONCERN
I have known Mr Kostopoulos for 8 months in my capacity as Alcohol and other Drug Worker at Silverwater Works Release Centre.
Mr Kostopoulos has attend [sic] my office weekly for the purpose of counselling for his drug addiction during all of this time.
Mr Kostopoulos has shown a marked desire to turn around his life, and past behaviours.
Mr Kostopoulos has nurtured and developed an insight into his offending behaviour and is currently working to address these issues.
Mr Kostopoulos is presently on a methadone program and it should be noted that this is for pain relief only.
Mr Kostopoulos has instigated and facilitates a methadone support group, and, also a Alcohol &other [sic] Drugs support group.
Given Mr Kostopoulos [sic] remarkable achievements over such a short period of time, it would, seem, to this writer, to be detrimental to his overall recovery if he were to be removed from the sanctuary of his family and Australia's internationally renowned facilities for combatting drug addiction.
From my own observations and Mr Kostopoulos self disclosures no useful purpose would be served by means of deportation.
(T: 88)
In a report dated 25 June 1987, Patricia Moriarty, a drug and alcohol worker at the Long Bay correctional centre wrote that Mr Kostopoulos' involvement with drugs began when he was sixteen "and progressed from Indian Hemp, L.S.D and alcohol to heroin addiction" (FS: 22). Ms Moriarty also stated that Mr Kostopoulos became drug free after six months of incarceration but was then prescribed opiates for pain relief – the nature of which will be discussed in more detail below (FS: 22). In his personal testimony to the Tribunal Mr Kostopoulos said that he still took Methadone every day and that he was on a dosage of 195 milligrams (transcript 23 October 2000: 24). Mr Kostopoulos informed the Tribunal that he had been on methadone without a break since 1986. The information with regard to the length and dosage of the methadone treatment was confirmed by Dr P J McGrath (R1) who also told the Tribunal that the amount of methadone prescribed to Mr Kostopoulos was a "big dose" (transcript 24 October 2000: 9) and also that it would be "extremely difficult" for Mr Kostopoulos ever to be weaned off the drug (transcript 24 October 2000: 9).
Mr Kostopoulos claimed he had discussions with a drug and alcohol counsellor about the possibility of seeking alternative pain relief strategies but no follow up had taken place to date. Mr Kostopoulos also indicated to the Tribunal that he had been abusing prescription drugs around the time he committed the shoplifting offences for which he was later convicted (transcript 23 October 2000: 13, 19, 22).
Medical Condition
Both the applicant and the respondent made certain submissions with regard to Mr Kostopoulos' medical history. That history was usefully summarised in a report provided by Dr P J McGrath, at the request of the respondent:
HISTORY
The history that I obtained was that he noticed pain in the left groin whilst doing some weight training in Goulburn prison in June 1986. He said that there was no history of a wound or needle injury at the time. The pain continued, and he could barely walk for a few weeks. A lump appeared and he developed a temperature, so after review by the medical staff at Goulburn prison, he was sent by ambulance to Prince Henry Hospital. There he required a drainage operation of an abcess in his left groin, and required drains for some weeks. He said the infection settled but the pain continued.
He continued to be seen by the orthopaedic clinic, and required two scans. He had a series of operations to try and scrape the infection from the bone and was treated with a prolonged course of antibiotics.
Eventually he required an operation to remove the head and neck of his left femur, and this was carried about by Dr Tom Ness on 21 April 1987.
After this he was treated in traction for several weeks and the infection appeared to settle completely. He was told by various doctors that eventually he could have a hip replacement, but the last information was that it should be deferred until he was 65 years old.
In May 1995 his hip was not troubling him, and he cancelled an appointment he had at the clinic.
He told me he had been granted a disability pension when he was last out of prison in 1998.
He has been on Methadone since 1986, and at the present time is taking 195 mgs a day.
Prior to his last arrest, he was struck by a car on the right side of his body in June 1999, and sustained a severe fracture of the lower end of his right tibia and fibula. He required surgery to insert screws and plates at Westmead Hospital, and has made a slow recovery. He had one screw at Auburn Hospital in November 1999 after his arrest. He still has a small discharge of pus from the outer wound, and he has been advised to go to Long Bay Hospital for ongoing treatment. However, he has lost faith in the prison medical service and is unwilling to accept this advice.
(R1)

Dr McGrath also noted that Mr Kostopoulos was presently suffering from "discomfort on the inner side of his left thigh, radiating towards the left knee, especially when walking" (R1). Dr McGrath further noted that Mr Kostopoulos:

…gets considerable pain in his right leg, eased only by Methadone, but also helped by elevation. He has been granted extra pillows so he can elevate his leg at night in his cell. The pain in the right leg is aggravated by cold, and as a result of this he is putting more pressure on his left leg. He is not required to do any physical work in the Correctional Centre.
(R1)

In addition, Dr McGrath stated that Mr Kostopoulos suffered from chronic tension headaches, Hepatitis B and Hepatitis C which has recently caused him to turn yellow and suffer pain in the abdomen (R1). Dr McGrath noted that Mr Kostopoulos has been informed that his liver had been affected by hepatitis (R1) and told the Tribunal that methadone would have a "deleterious effect" particularly on Mr Kostopoulos' liver (transcript 24 October 2000: 4).

Dr McGrath also performed an examination of Mr Kostopoulos the result of which was contained in his report. Based on this examiniation Dr McGrath also answered specific questions posed by the respondent in the following manner:
(a) In your opinion what is Mr Kostopoulos' condition?
He has a markedly shortened left lower limb as a consequence of developing infection in the groin, that led to septic arthritis of the left hip and osteomyelitis of the upper left femur. Surgery in 1987, to exercise the neck and head of the left femur, has been successful in controlling the infection but has left marked shortening and instability of the left hip. He now has pain in the left thigh.
As a result of the leg length inequality, he has developed some pain in his lower back but this does not appear to be of a disabling nature.
A more recent problem has been the fractures of the lower end of the right tibia and fibula, following a motor vehicle accident in June 1999. These fractures required open reduction and internal fixation, and there is now evidence of low grade infection associated with the fracture of the fibula.
(b) In your opinion what future treatment will be required?
On a number of occasions it has been suggested to Mr Kostopoulos that he maybe able to have a total hip replacement on the left side. The last advice he was given was that this should be deferred until he is 65 years of age. I personally feel that technically it would be very difficult to replace the hip, and the procedure would be liable to cause a flare of the longstanding but quiescent infection in his left femur.
His back pain will not require any specific treatment, but his ongoing low grade infection in the right leg will require assessment by an orthopaedic surgeon and possible removal of the metallic implants when the fractures have united.
(R1)

In his personal testimony before the Tribunal Dr McGrath stated that Mr Kostopoulos "would probably find it easier if he were to use crutches" (transcript 24 October 2000: 9). Dr McGrath further stated:

He's managing to walk around admittedly with a marked lurch but he can walk but I would think that mobility on crutches would probably be a little more comfortable with him. Eventually, yes, he might end up in a wheelchair if things continue to go as they go or he may well remain about the same level. I guess as he gets older, when other joints become effected, then this would naturally influence his mobility and he would probably – the effects of the normal wear and tear, as we say degenerative changes that normally occur in joints of the body with increasing years, would probably be greater in his case because other joints would be carrying a greater load because of his abnormal left leg.
(transcript 24 October 2000: 10)

Dr McGrath estimated that Mr Kostopoulos "would become probably more confined and have greater difficulty getting around than he has at the moment" in "about another 10 to 15 years" (transcript 24 October 2000: 10).
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 Kostopoulos will act as a deterrent to others (Policy Direction: paragraph 14). The Tribunal did not receive and specific evidence regarding this factor but the issue will be discussed further at the conclusion of this decision.
Hardship
Policy Direction
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).
(Policy Direction: paragraph 21)
In assessing the degree of hardship which may be suffered by Mr Kostopoulos 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.
(Policy Direction: paragraph 22)
It was not contended on behalf of Mr Kostopolous that he now had any ongoing marital or defacto relationship with an Australian citizen or resident (paragraph 22(a). It was contended, however, that Mr Kostopolous had spent the greater proportion of his formative years in Australia, that he now had almost no ties with Greece and that he retained strong family and related affiliations with Australia (paragraph 21(b), (c) and (d)).
Family and Associated Ties
Mr Kostopolous' sister, Maria Andrikopoulos, an Australian citizen, gave testimony before the Tribunal and also provided the Tribunal with a written statement (A3). Ms Andrikopoulos wrote in that statement that she believed Mr Kostopolous would not have any support network if he were to return to Greece, nor did she believe that Mr Kostopolous would be able to find work – a problem Ms Andrikopoulos believed was exacerbated by Mr Kostopoulos' medical condition (see also transcript 23 October 2000: 31). Speaking on behalf of the family Ms Andrikopoulos told the Tribunal of the love and support that would be offered by Mr Kostopoulos' family were he to be allowed to stay in Australia (see also . transcript 23 October 2000: 31). In cross examination by the respondent's solicitor Ms Andrikopoulos said that the family did have relatives in Greece, "cousins", but that they were not close. Ms Andrikopoulos said that her last visit to Greece, in 1993, was made in order to visit her husband's family (transcript 23 October 2000: 32) although she had stayed with her aunt, uncle and three counsins in Patrai, the town from which she and Mr Kostopoulos originally came. Ms Andrikopoulos told the Tribunal that her husband's family lived in a village "about 35 kilometres" from Patrai.
Ms Andrikopoulos said that she and her husband would be willing to give Mr Kostopoulos financial assistance in Australia but that they would not be able to afford to meet the extra financial burden that would arise with his removal to Greece (transcript 23 October 2000: 32-33). Ms Andrikopoulos said that it was her belief that Mr Kostopoulos would not be eligible for medical benefits in Greece were he to be deported (transcript 23 October 2000: 33). Ms Andrikopoulos told the Tribunal that a Greek citizen was eligible for unemployment benefits for six months and then became the responsibility of that person's parents (23 October 2000: 35). Ms Andrikopoulos also told the Tribunal that she did not believe the Greek Orthodox church, of which Mr Kostopoulos is a practising member, would be able to provide her brother with charitable assistance (23 October 2000: 35).
The Tribunal also received written statements from Mr Kostopoulos' mother (A1) and his other sister, Ms Athanasia Kostopoulos.(A2). Ms Kostopoulos wrote that since the death of her father Mr Kostopoulos was the "head" of their family, that her mother was very sick and would not "stand the blow" of losing her son and she also expressed fear of what would happen to her brother if he returned to Greece where, in her opinion, he would not receive medical benefits. Mrs Kostopoulos wrote to the Tribunal stating that "Terry is the only person that can stand by me" and that she suffered from "theroid cancer, asthma and tumor in stomach". Mrs Kostopoulos also wrote that it was her belief that her son's own "destroyed" health meant that his only chance for "survival" was in Australia.
Fay Giallussi, a social worker with the welfare service section of the Greek Orthodox Community of New South Wales also provided the Tribunal with a written statement in the form of a letter written to the Department and dated 25 May 2000(A4). Ms Giallussi wrote that she had interviewed Mrs Kostopoulos "extensively" and noted that she was a "sick elderly lady" who would never see her son again if he were to return to Greece.
Conditions in Greece
The Policy Direction (paragraph 22(f)) includes among the list of factors which should be considered by decision makers when assessing the degree of hardship which may be suffered through deportation, "the situation in the country of proposed return, including the overall environment, job opportunities, and the possibility of additional criminal sanctions". Specific evidence was presented to the Tribunal in this regard, with particular attention being placed on Mr Kostopoulos' employment prospects, ability to receive adequate medical treatment and the social security environment in Greece.
In the medical report provided to the Tribunal at the request of the respondent, Dr McGrath observed that Mr Kostopoulos' employment opportunities were such that he "doubted" whether he could work again in his previous occupation of "concreter/labourer" and he equally doubted whether he would be capable of holding down a "clerical or sedentary job" (R1). Dr McGrath wrote: "I note that he has been granted a disability pension and he will almost certainly need some ongoing support financially". Dr McGrath then noted: "I do not know whether such support will be available in Greece".
Dr McGrath was also asked to report on whether he thought Mr Kostopoulos would be able to obtain the medical treatment he required in Greece. Dr McGrath made the following written statement:
I do believe that there are sufficient competently trained and experienced orthopaedic surgeons in Greece to be able to give a good opinion about ongoing treatment for his left femur and right leg. In the major cities he should be able to get this advice and management.
(R1)

Dr McGrath also made the following observation in his report:

As indicated above, he has a very severe disability in his left lower limb, and a more recent problem in his right lower limb. He has lost all faith in the prison medical services, and it would be useless trying to persuade him to have anything further done whilst he remains an inmate. I do not feel that the medical services in Australia would necessarily be able to offer him any better chance of success in the management of his difficult problems, than the orthopaedic surgeons in Greece could.
(R1)

Dr Janis Mastrokostos, a specialist in internal medicine, was also made available by the respondent to the Tribunal. Dr Mastrokostos had not examined Mr Kostopoulos but had read the report (R1) provided by Dr McGrath. Dr Mastrokostos told the Tribunal that in his view Mr Kostopoulos suffered from three separate problems these being his orthopaedic issues; his liver problem and lastly his addiction to methadone (transcript 24 October 2000: 21). With regard to Mr Kostopoulos' orthopaedic problems Dr Mastrokostos concurred with the opinion given by Dr McGrath that "experienced surgeons" were available in Greece (transcript 24 October 2000: 21). Dr Mastrokostos noted Mr Kostopoulos' liver problems but in the absence of further information was hesitant to comment on the problems they might engender (transcript 24 October 2000: 22-23). On the issue of Mr Kostopoulos' addiction to methadone, Dr Mastrokostos told the Tribunal that this medication was "not available" to Mr Kostopoulos in Greece where it was used only in the treatment of heroin addiction. Dr Mastrokostos stated that it would be "difficult" for Mr Kostopoulos "to go from methadone to other medication" (transcript 24 October 2000: 21).

In a letter written to Peter Long, the principal migration officer at the Australian Embassy in Athens, Dr Mastrokostos addressed the issue of social security payments. Dr Mastrokostos wrote:
I think there are well trained and experienced doctors and facilities here in Greece to handle [Mr Kostopoulos'] problems. All these procedures are very expensive and it will be difficult for an unemployed and uninsured person to bear the costs. However, there is a provision by the Ministry of Health and Welfare for proven indigent people that underwrites partial and in some cases full expenses for these people. I think it is advisable to contact the Ministry to get the correct information. If he is placed in prison in Greece, the Ministry of Justice is the responsible party.
(R2)

Dr Mastrokostos re-iterated these views in his personal testimony before the Tribunal and also made clear that the matters concerning the provision of social security in Greece were not matters for which he felt "responsible" to answer questions (transcript 24 October 2000: 21).

Mr Peter Long also gave personal testimony before the Tribunal. Mr Long stated that on the basis of the inquiries he had made that:
….people that, if we can say, are in destitute or poor circumstances, although provision is made by the Ministry of Health to give them a booklet where they can go to a hospital and have treatment. In practice this isn't as easy as that and the hospitals tend to make it very difficult for people to obtain that treatment. They might make them wait days or weeks or whatever to have it. The hospital seemed more disposed to treat quickly people who have the actual money to pay for treatment.
(transcript 24 October 2000: 28)

Mr Long told the Tribunal that he had never had direct experience with a person in Mr Kostopoulos' circumstances and would be unable to comment on what Mr Kostopoulos could expect on arrival in Greece nor did he wish to comment on the employment situation in Greece (transcript 24 October 2000: 29-30).

On behalf of the applicant, Ms Giallussi included in the letter before the Tribunal and already mentioned above her views as to the operation of the social security system in Greece (A4). Those observations were as follows:
I am very familiar of the system, having worked as a social worker within the Greek community for more than fifteen years and presently funded by DIMA [the Department] as a CSS Worker for settlement issues I deal with both returning residents to Australia and those returning to Greece and the portability of their pensions.
It is my belief that the Social Security system in Greece will not accommodate a resident of Australia who has not contributed to the system or worked in the country and paid for access to the public medical system (IKA).

Ms Giallusi did not provide personal testimony to the Tribunal.
CONSIDERATION
Departmental Procedure

Dr Churches on behalf of the applicant made extensive submissions with regard to the departmental procedures utilised by the respondent's officials in determining that Mr Kostopoulos should be deported back to Greece. Dr Churches contended that Mr Kostopoulos' convictions for petty theft in late 1999 "resulted in a search" by the respondent authorities "for a basis for deportation". That search, according to Dr Churches, led to a determination by the respondent that Mr Kostopoulos was eligible for deportation on the basis of the crimes he committed in 1990 and for which he sustained a conviction in 1991. Dr Churches, then contended that the respondent became aware that Mr Kostopoulos was not legally eligible for deportation on the basis of the 1991 conviction and as such "was forced back to the 1984 crimes, on respect of which [the respondent] had issued a warning in 1995". Dr Churches submitted that "[i]t may be that the Respondent retains a power to utilise the power to deport in respect of offences committed within the 10 year period, after the ten year period…". However, Dr Churches further submission was that "it would be unreasonable for the Sword of Damocles to remain poised above the applicant indefinitely". Rather, submitted Dr Churches, "the necessary restraint of reasonableness" required that the "latent power in the Minister to deport should not be activated for anything less than a deportable offence". To that extent, Dr Churches contended on the applicant's behalf that the triggering of deportation by reference to the shoplifting of household goods under the influence of methadone was a "singularly inappropriate" basis for "changing a letter of non-deportation of 1995 regarding offences committed in 1984, into a decision to deport in 2000". It was Dr Churches submission on the behalf of the applicant that the procedures followed by the respondent's officials were devoid of the appropriate natural justice, unreasonable and disproportionate.
Ms Kapel, on behalf of the respondent submitted that the deportation order was properly and legally issued. Ms Kapel submitted that Mr Kostopoulos had been in Australia for less than ten years "when the [1984] offence was committed" and thus fell within the bounds of s200 of the Act. Ms Kapel contended that there was no intention in the Act or Policy Direction that after ten years lawful residence an applicant can no longer be deported.
Ms Kapel further submitted on behalf of the respondent that that in 1982 and 1995 it was decided that Mr Kostopoulos would not be deported but that warnings would be issued to him. Ms Kapel submitted that the terms of these warning were such as to inform Mr Kostopoulos that were he to re-offend he would indeed face deportation. Ms Kapel submitted that "[t]here never was an undertaking that the applicant would never be deported for the offences which first rendered him liable for deportation nor for his subsequent offences".
Ms Kapel also submitted that although the issues raised by Dr Churches did not remove the power to deport they were a relevant consideration in the weighing process envisaged by the Policy Direction. In particular Ms Kapel submitted that the issues raised by Dr Churches were relevant to the length of time Mr Kostopoulos had been in Australia and the hardship he might face on return to Greece. Ms Kapel submitted that " [t]he length of time which has elapsed between when he [Mr Kostopoulos] was first liable for deportation and when he was finally considered for deportation is a factor relevant to recidivism".
It is the Tribunal's duty to make a fresh decision on the merits having regard to all of the evidence presented during this hearing and with due regard to the Policy Direction. It is not the duty of this Tribunal to adjudicate on the issue of the Department's procedural inadequacies or otherwise. With that understanding in mind the Tribunal accepts that the power to deport remains with both the Department and this Tribunal. On this basis the Tribunal will now proceed to examine the policy and other submissions made by the parties with regard to Mr Kostopoulos' application.
Policy and Submissions
Apart from the terms of the Policy Direction as outlined, the Tribunal also makes this decision with the benefit of the guidance and direction provided by a number of recent Federal Court decisions which have considered the interpretation of the Policy Direction: see Rokobatini; Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713; and Lau v Minister for Immigration and Multicultural Affairs (2000) FCA 698 (hereinafter Lau). As the Full Federal Court said in the most recent decision of Lau, the Policy Direction makes it clear:
… that it is necessary to balance a number of important factors in reaching a decision as to deportation. A decision-maker is required to have due regard to the importance placed by the government on the two primary considerations nominated, but it states a balancing process should also be adopted, one which takes into account all relevant considerations. It is clear that it is open to a decision maker to regard the primary considerations as not governing the outcome in a particular case. It has been held that the Direction does not have the rigid operation as that for which the appellant contends: Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713 (Sackville J).
(per Kiefel, North, Mansfield JJ at para 29)
In the decision Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, Madgwick J made observations similar to those which have just been cited from Lau. Justice Madgwick said that the Policy Direction envisages that in coming to its decision the Tribunal will:
… embark upon a balancing process which weighs, amongst other things, the harm that a deportee is likely to do to the community if allowed to remain in Australia against any hardship that the applicant and/or his immediately family are likely to suffer if he is deported. It is true that the direction also envisages that the balance is to be weighted in favour of the protection of the community and against the interests of the deportee. As I have indicated, however, the direction should not be read as requiring that hardship be practically disregarded whenever a strong case of risk to the community is made out. The direction itself explains the overriding philosophy in its 'Preamble':
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to deport from Australia those non-citizens who have abused the privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it. (emphasis added)
(T: 399-400; paragraph 29)
With these guiding principles in mind, and in accord with the terms of the Policy Direction, the Tribunal now considers the difficult task it must undertake of balancing each of the factors relevant to Mr Kostopoulos' case.
Expectations of the Community
The primary consideration to which the Tribunal must have regard in deciding whether or not Mr Kostopoulos should be deported is the expectation of the Australian community that it will be protected and not put at risk (Policy Direction: paragraph 8(a) and 8(b)). The evidence which was presented to the Tribunal concerning the three factors relevant to the assessment of the level of risk to the community and the need for its protection has been set out above in substantial detail. Paragraph 11 of the Policy Direction has the following to say about examples of offences which are considered by the Government to be very serious:
11.(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.

Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.
The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.
…
          (d) armed robbery (including robbery involving the use of imitation weapons);
          (j) serious theft (including "white collar" crimes)

In her submissions on behalf of the respondent, Ms Kapel submitted that the applicant's conviction for supply prohibited drug on 9 March 1979 fell within the scope of serious offences as contemplated by the Policy Direction. Ms Kapel further noted that Mr Kostopoulos had in fact received a lesser sentence than would ordinarily be the case but made no submission with regard to the notice that the Tribunal should take of that circumstance. Dr Churches, on behalf of the applicant, acknowledged the nature and seriousness of Mr Kostopoulos' first deportable offence.
With regard to the conviction for armed robbery in 1985, the respondent, submitted that too was a very serious offence under the Policy Direction and that it was also an offence from which the Australian public rightly expected protection. The respondent further submitted that Mr Kostopoulos' commission of "eight separate offences" (excluding the armed robbery offence) of break, enter and steal or theft also amounted to very serious crimes under the Policy Direction.
Ms Kapel also asked the Tribunal to consider paragraph 13 of the Policy Direction which makes reference to certain factors that should guide the Tribunal's assessment of an applicant's recidivist potential. Ms Kapel noted that Mr Kostopoulos committed a number of further offences after having received warnings with regard to his liability for deportation (paragraph 13(a)); that Mr Kostopoulos criminal history was extensive and his criminal behaviour ongoing (paragraph 13(b)) and also that Mr Kostopoulos had not provided the tribunal with evidence of a motivation or intention of living a life according to the law (paragraph 13(c)).
On behalf of Mr Kostopoulos, Dr Churches asked the Tribunal to consider that Mr Kostopoulos was now a much older man and one who acknowledged that he was now also wiser – he was a man whose life had come to a "cross roads". Dr Churches further asked the Tribunal to consider that the applicant was also in poor health and experienced pain in his legs, one of which was now ten centimetres shorter than the other. Dr Churches submitted that the Tribunal should place significant weight on the testimony provided by Mr Griffiths, Mr Kostopoulos' parole officer, who indicated that he did not see the applicant as a danger to the Australian community and who noted that with age the drive to anti social behaviour, of the nature exhibited by the applicant, diminished. Further, Dr Churches contended that the offences committed by the applicant in 1990 and after were "pathetically inept" and that although these crimes were "certainly disruptive" and required dealing with under the criminal justice system they were not "material that cries out for deportation".
The respondent contended that the deportation of the applicant would deter other non-citizens from the commission of serious crimes.
Neither the applicant nor the respondent contended that the relationship between Mr Kostopoulos and his adult son or grandson was sufficiently close to constitute a primary consideration for the Tribunal.
The Tribunal has given careful attention to these submissions made on behalf of both the applicant and the respondent as to the way in which it should seek to give appropriate attention to the dictates of the Policy Direction in the circumstances of this case. The Tribunal finds that the deportable offences committed by Mr Kostopoulos up until and including the commission of the armed robbery offence in 1990 are very serious within the terms of the Policy Direction.
The Tribunal did not have before it extensive information with regard to each of Mr Kostopoulos' crimes for theft. The Tribunal notes, however, that three of the offences referred to by Ms Kapel in her submissions were committed while Mr Kostopoulos was still a minor; two of those offences occurred in 1975 when Mr Kostopoulos was 18 and these convictions were for stealing money for which a fine of $150.00 was imposed with an additional $50.00 for compensation and for the theft of petrol for which a fine of $100.00 was imposed with an additional $10.06 to be paid in compensation. Mr Kostopoulos next stealing crime was committed when he was 19. That crime was stealing clothing and a gaol sentence of three months was imposed. It is the Tribunal's view that the commission of these offences cannot be regarded as very serious within the terms stipulated by the Policy Direction. Although the Tribunal does not have before it an account of the circumstances surrounding the commission of the of the break enter and steal offences in 1983, it is clear from the two year sentence imposed that these were more serious crimes and they are acknowledged as such by the Tribunal.
In considering Mr Kostopoulos' offending in the ten year period since his conviction for armed robbery in 1991, the Tribunal finds a significant lessening in the extent and seriousness of Mr Kostopoulos' criminal activity. The Tribunal will discuss below the account that needs to be taken of Mr Kostopoulos' continued re-offending. It is, however, sufficient to note at this point that the offences committed by of Mr Kostopoulos since 1991 are not of themselves "very serious" within the terms stipulated by the Policy Direction.
Having reached this conclusion about the nature and seriousness of Mr Kostopoulos' offending, the question which must be addressed next is what level of risk does he now pose to the Australian community. The Tribunal accepts the respondent's contention that Mr Kostopoulos' "criminal history is extensive". It is clear to the Tribunal that in light of Mr Kostopoulos' past behaviour he must be viewed as a person who is at risk of re-offending. That view is buttressed by the fact that Mr Kostopoulos continued to re-offend even after deportation warnings had been issued to him by the Department. The prima facie risk posed by Mr Kostopoulos must, however, be viewed in the context of all the evidence before the Tribunal.
There is nothing before the Tribunal to indicate that Mr Kostopoulos has, in the two decades following his conviction for supply heroin, involved himself either with the personal use of that drug or its supply to others. The evidence before the Tribunal and which the Tribunal accepts is that Mr Kostopoulos was initially and successfully placed on a methadone treatment program. More than a means of treating Mr Kostopoulos' addiction, that treatment has, over some considerable time, become a means of managing the significant pain Mr Kostopoulos experiences as a result of the medical problems with his legs. The Tribunal accepts, in accordance with the medical evidence before it, that it is unlikely that Mr Kostopoulos, as a 43 year old man, will ever stop taking methadone. The Tribunal sees nothing in the evidence before it to suggest that Mr Kostopoulos will return to the life of crime associated with heroin use and its supply. With respect to his use of heroin Mr Kostopoulos has achieved a successful rehabilitation.
The Tribunal is, however, not of the opinion that Mr Kostopoulos leads a life that is entirely free from substance abuse. The Tribunal notes that Mr Kostopoulos has misused prescription drugs for some time. Mr Kostopoulos has, however, shown an intention to address these issues. Mr Griffiths, a probation and parole officer with the Department of Corrective Services told the Tribunal that Mr Kostopoulos had been attending weekly individual counselling sessions with a drug and alcohol counsellor at the prison. The Tribunal also had before it the report prepared in February 2000 by Mr Divine, Mr Kostopoulos' drug and alcohol counsellor, which stated that Mr Kostopoulos had shown a marked desire to turn around his life and that he had made significant progress in that regard. Mr Griffiths also stated that Mr Kostopoulos had instigated and facilitated a methadone support group at Silverwater Correctional Centre and was addressing his offending behaviour "to the best of his ability" and that such effort had been "genuine". Mr Griffiths recommended that Mr Kostopoulos could make good his rehabilitative efforts with continued drug and alcohol counselling and monitoring via the parole authorities.

The evidence offered by Mr Griffiths was in keeping with an earlier report made by the probation and parole service of the Department of Corrective Services. The report prepared in 1998 indicated that Mr Kostopoulos early responses to supervision, dating back to 1975, had been poor. In recent times, however, the 1998 report noted that Mr Kostopoulos had positive assessments for both work and conduct and had shown a willingness to undergo psychological counselling from which he admitted significant benefit, particularly with regard to acceptance of his medical condition, pain management and his personal relationships. The report stated that Mr Kostopoulos' employment record was "excellent" and that he had become the chief animal carer at the prison wildlife centre, where he lived alone and assumed responsibility for the animals at night. The report also noted that since 1997 Mr Kostopoulos had been allowed day and weekend leave and at that time his sister had acted as a sponsor. Mr Kostopoulos was also allowed to attend shopping in Penrith on a weekly basis.
The evidence also suggests that Mr Kostopoulos is now a man with significant medical problems, particularly in relation to his legs. Dr McGrath's evidence before the Tribunal was that Mr Kostopoulos' "markedly shortened left lower limb" and "instability of the left hip" may not be capable of surgical rectification. This incapacitation which has already resulted in Mr Kostopoulos walking with what Dr McGrath described to the Tribunal as a "marked lurch" has been further exacerbated by a fracture of right tibia and fibula following a motor vehicle accident in 1999 and from which Mr Kostopoulos now suffers a low grade infection. Dr McGrath told the Tribunal that although Mr Kostopoulos was "managing to walk around" movement would be more comfortable were he to use crutches. Dr McGrath also told the Tribunal that the condition of Mr Kostopoulos' left leg could worsen or stay the same but it was not a condition capable of significant improvement. It is the Tribunal's view that Mr Kostopoulos' medical condition must as a matter of course significantly curtail the criminal activities in which Mr Kostopoulos could realistically engage.
Based on the expert opinions before it, the Tribunal is satisfied that Mr Kostopoulos' prospects of rehabilitation are substantial. Through his actions in weening himself off heroin with the assistance of methadone and his attending and initiating counselling for his remaining substance abuse problems Mr Kostopoulos has shown the Tribunal that he has undergone extensive rehabilitation and has good prospects for further rehabilitation. The Tribunal is further of the view that Mr Kostopoulos has shown himself to be a cooperative prisoner who has earned the support of his parole officer and drug and alcohol counsellor both of whom testified before this Tribunal as to Mr Kostopoulos' achievements and future prospects. The Tribunal is especially conscious of the very serious nature of Mr Kostopoulos' criminal history, particularly in the period 1979 until 1991. The Tribunal is of the view that since 1991 Mr Kostopoulos has not exhibited himself as a man prone to such extreme anti-social behaviour. Further, it is the Tribunal's view on the basis of the medical evidence before it that Mr Kostopoulos' recidivist potential, such that it exists, will be deeply curtailed by his medical problems, specifically with regard to the restrictions that will be placed on his ability to move.
Other Relevant Factors
The evidence relating to a number of other matters relevant to the issue of deportation, including the degree of hardship which might be suffered by Mr Kostopoulos and his immediate family should he be returned to Greece has been summarised above. On the basis of that evidence Ms Kapel acknowledged on behalf of the respondent that deportation of Mr Kostopoulos would result in some hardship to him but that such hardship should be given less weight than the consideration of the expectations of the Australian community. For his part, Mr Churches submitted that the hardship that would be experienced by Mr Kostopoulos on his return to Greece was of a nature that would lessen the "weight in the scales" claimed by the respondent on the basis of the applicant's criminal record.
With regard to hardship Dr Churches contended that the real issue facing the Tribunal was not whether there was treatment in Greece for Mr Kostopoulos' medical conditions but whether Mr Kostopoulos would be able to access this treatement. Ms Kapel, on behalf of the respondent, asked the Tribunal to consider that the treatment sought by Mr Kostopoulos would be available in Greece and that there was a public health system which Mr Kostopoulos could apply to have access to. Ms Kapel acknowledged that the treatment sought by Mr Kostopoulos would be expensive. It is the Tribunal's view that not all of the treatment required by Mr Kostopoulos would be available in Greece. Dr Mastrokostos made it clear to the Tribunal that there would be no methadone program available to Mr Kostopoulos for the treatment of his leg pain. In effect, Mr Kostopoulos would be required to end fifteen years of methadone usage, a treatment which has successfully cured his addiction to heroin and which has also assisted him in managing his leg pain. The Tribunal understands that such action would not only be "difficult" in the words of Dr Mastrokostos but the issue of whether Mr Kostopoulos would receive any public health benefits or alternative medical assistance remains seriously in doubt. It is to the evidence with regard to Mr Kostopoulos' ability to access medical assistance in Greece that the Tribunal now turns.
The Tribunal was not furnished with any statement that could be regarded as definitive with regard to Mr Kostopoulos' ability to access medical assistance in Greece. The Departmental representative situated in Greece informed the Tribunal that provision was made for people in "destitute or poor circumstances" but that the reality of that practice was that "hospitals tend to make it very difficult for people to obtain that treatment". There was also evidence before the Tribunal in the form of a statement from a social worker with the welfare service section of the Greek Orthodox Community of New South Wales to the effect that a resident of Australia who has not contributed to the Greek welfare system nor worked in Greece would not be eligible for access to the public medical system. There is thus nothing before the Tribunal to suggest that Mr Kostopoulos would have ready access to the medical treatment he requires in Greece.
Ms Kapel on behalf of the respondent acknowledged that that applicant did have strong family ties in Australia, particularly with his mother and two sisters and virtually no ties with family in Greece. Dr Churches also indicated that Mr Kostopoulos' mother and sisters had significant concerns for his welfare and also pointed to the lack of ties between the applicant and his home country. It is the Tribunals view that very real hardship will befall Mr Kostopoulos' mother and sisters should he return to Greece.
The Tribunal also understands on the basis of the medical evidence made available by the respondent that Mr Kostopoulos' medical condition would preclude him working in either a labouring or sedentary job. Dr McGrath told the Tribunal that Mr Kostopoulos would require some form of private or public support for his disabilities.
CONCLUSION
The decision to deport a person who has lived the majority of his life in this country is a serious one. It is a decision that requires the balancing of the expectations of the Australian community and the need to protect this community from those who persist with criminal offending with the hardship of those who are to be deported. In reaching a conclusion the Tribunal's primary concern is the expectation of the Australian community and their protection.
Mr Kostopoulos is a man who one decade ago was consistently engaging in criminal activities that were undoubtedly very serious within the terms of the Policy Direction. Two decades after the commission of his first deportable offence, Mr Kostopoulos presents to the Tribunal as a somewhat different man: one who has overcome his heroin addiction, who has not engaged in serious crime for ten years and who has won the support of his parole officer and drug and alcohol counsellor. Mr Kostopoulos also suffers from a serious and non-rectifiable medical condition that seriously impedes his physical movement. This medical condition necessitates treatment, which it is, in the Tribunal's view, unlikely he will receive in Greece. Mr Kostopolous also has the love and constant support of his mother and sisters, has developed strong ties with Australia in the thirty years he has been resident here and has virtually no ties with Greece. There would seem to the Tribunal to be very little deterrent value in sending Mr Kostopolous back to Greece.
On this basis and having regard to all the evidence before it, the Tribunal is satisfied that despite the very serious nature of Mr Kostopolous' past offences these are outweighed by both the low level of risk he now poses to the Australian community and the significant level of hardship he will experience on return to Greece. The decision under review is thus set aside and substituted with a decision not to deport Mr Kostopolous.

ATTACHMENT 1

PLACE AND DATE OF CONVICTION   OFFENCE AND DATE CHARGED         SENTENCE
Minda Children's Court 01/02/74   Break, enter and steal        Committed to institution
Albion Street Children's Court 04/06/74   Malicious injury (3 counts) Committed to institution
Albion Street Children's Court 04/06/74   Steal (Radio) Committed to institution
Albrion Street Children's Court 04/06/74 Steal (Microscope)   Committed to institution
Parramatta 08/04/75           Stealing money       Fined - $150.00 Compensation - $50.00
Hornsby P.S. 02/05/75       Steal (Petrol) Fined - $100.00 Compensation - $10.06
Hornsby P.S. 02/05/75       Possess firearm      Sentence deferred on entering own recog. Fined - $200 Good behaviour bond 2 years and accept supervision by the Probation and Parole Service
Parkes P.S. 11/08/75         Malicious injury       Fined - $150.00 Compensation $25.00
Parkes P.S. 11/08/75         Assault male Fined - $100.00
Forbes P.S. 12/8/75 Unseemly words     Fined $150.00
Parkes Local Court 24/11/75        Driving with a prescribed concentration of alcohol       Jail – 2 months
Parkes Local Court 24/11/75        Driving with a prescribed concentration of alcohol       Fined - $150.00 Licence disqualified 12 months
Parkes Local Court 24/02/76        Driving causing undue noise        Jail – 10 days
Parramatta P.S. 09/12/76   Stealing clothes from retail store 08/12/76       Jail – 3 months
Phillip Street Local Court 14/02/79          Parking offence       Jail – 24 hours
Phillip Street Local Court 14/02/79          Parking offence       Jail – 48 hours
Sydney City District Court 09/03/79     Supply prohibited drug (heroin)           Jail – 6 years hard labour with a non parole period of two years six months.
Phillip Street Local Court 23/05/79          Parking offence       Jail – 48 hours
Goulburn District Court 04/12/80   Escape from lawful custody Date of escape from lawful custody 21/06/80 Date of re-capture 15/09/80     Jail – 1 year to commence at the end of sentence to which the applicant was serving at date of escape.
Burwood Local Court         Possession unlicensed pistol       Jail – 1 month
04/02/82                   The applicant is issued with a warning that should he re-offend he will be liable for deportation
Sydney City Parole Board 15/04/83         Breach of parol [sic] conditions     The applicant is required to serve all of the remaining time on his sentence. The total time is 7 years.
Sydney City District Court 04/08/83         Break, enter and steal – Burglary Jail – 2 years
Sydney City District Court 04/08/83         Break, enter shop and steal          Jail – 2 years
Parramatta District Court 04/04/85          Breach of parol [sic] conditions     The applicant is required to serve all of the remaining time on his sentence. The total time remaining is 7 years.
Parramatta District Court 16/01/85       Robbery whilst armed (2 counts) 9 September 1984           Jail – on each count 9 years penal servitude with a non parole period of 5 years
Parramatta District Court 16/01/85          Break enter a house and steal 9 September 1984     Jail – 6 years
Parramatta District Court 16/01/85          Attempt Break, Enter and steal 9 September 1984     Jail – 4 years
08/05/85                   The applicant was issued with a second warning that should he re offend [sic] he will be liable for deportation
Parramatta District Court 04/04/85          Attempt steal Jail – 4 years
Sydney City District Court 13/08/85         Robbery        Jail – 18 months
Sydney District Court 27/11/90     Common assault     Released on own recog. Fined - $5000.00 Good behaviour for five years, supervision and guidance by Probation and parole service.
Sydney City District Court 22/10/91     Robbery whilst armed     Jail – 8 years Additional term 2 years and 8 months
Sydney City District Court 22/10/91         Attempted armed robbery   Jail – 8 years
Parramatta Local Court 04/08/99 Receiving     Jail – 8 months
Parramatta Local Court 04/08/99 Give custody of items suspected stolen (x2)      Jail – 6 months
Parramatta Local Court 04/08/99 Larceny (x6) Jail – 6 months
NSW Parole Board 24/08/99         Breach of parole      The applicant is required to serve all of the remaining time of his sentence. The sentence time is 2 years 3 months
Downing Centre – Local Court 03/09/99 Maliciously destroy property This offence was committed whilst in custody      Jail – 3 months to be served concurrently with previous offence.
Downing Centre – Local Court 03/09/99 Larceny This offence was committed whilst in custody           Jail – 3 months to be served concurrently with previous offence

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  23, 24, 25 October 2001
Date of Decision  23 January 2001
Counsel for the Applicant        Dr Stephen Churches
Solicitor for the Respondent    Ms Juanita Kapel