Levi and Minister for Immigration and Multicultural Affairs - [2001] AATA 867

DECISION AND REASONS FOR DECISION [2001] AATA 867

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q01/185

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TA'ALILI LEVI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date17 October 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – applicant New Zealand citizen – seriousness of offences – risk of recidivism – hardship to applicant and applicant's mother.
Migration Act 1958 s 200

REASONS FOR DECISION

17 October 2001 Deputy President DP Breen, Presidential Member

This is a review of a decision to deport the applicant, Ta'alili Levi, pursuant to Section 200 of the Migration Act 1958. A deportation order in the name of Ta'alili Sulusi also known as Ta'alili Levi was signed by a delegate of the Minister responsible for administering the Migration Act on 13 June 2000. On 1 March 2001 the applicant, through his then Solicitor, applied for an extension of time in which to lodge his application for review with this Tribunal. That extension was granted by the Tribunal on 17 April 2001.
This matter came on for hearing before me in Cairns on 8 October 2001. Mr K Priestly of Counsel, instructed by Messrs Williams Graham & Carman appeared for the applicant and the respondent was represented by Mr D Gallo, Solicitor of Messrs Blake Dawson Waldron. The hearing was adjourned in order that the parties could submit written submissions. Those submissions were received and on 15 October 2001 the matter was relisted in order to take submissions in reply and the parties were advised that a decision would be delivered on 17 October 2001. That decision was given orally and I now provide written reasons for that oral decision.
At the hearing on 8 October 2001 oral evidence was taken from the applicant, Ta'alili Levi and his mother, Vaopule Betty Pale. The following documents were tendered as exhibits.

Exhibit 1 "T" Documents
Exhibit 2 Statement of Ta'alili Levi dated 8 October 2001
Exhibit 3 Statement of Betty Pale dated 3 October 2001
Exhibit R4 Bundle of documents from Corrective Services files

As I have said, the decision to deport the applicant was made by a delegate of the respondent Minister pursuant to Section 200 of the Migration Act, that Section conferring a discretion to order the deportation of a non-citizen to whom the relevant provisions of the Act apply.
I deem it appropriate to record the terms of Section 201, it being the Section by which the category of persons liable to deportation under Section 200 is defined.
"Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
(ii)was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A)for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B)for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person."
The applicant is a non-citizen who arrived in Australia on 10 November 1995. He has been convicted of three offences of robbery, the offence being defined in by the Minister's General Direction as "very serious". In addition to that fact, a decision-maker logically is required to pay regard to the features of the particular crime or crimes upon which deportation is being considered.
Brief details of those offences are provided in the written submissions of each Counsel and I draw from paragraph 3.3 of the submissions tendered on behalf of the respondent to particularise them.
"3.3 ………...
(a) at age 15 the applicant robbed a tourist at gunpoint;
(b)at age 15 the applicant robbed a BP service station threatening the attendant with a 25 cm carving knife;
(c)at age 18 the applicant robbed a tourist lying in the Cairns Mall and then stomped on the person's head."
In respect to the offence referred to in (c) above, it emerged in evidence that at the time of committing this offence the applicant was in company with another criminal, the tourist was intoxicated and asleep.
The evidence also presented the Sentencing Remarks of His Honour Judge White of the District Court of Queensland, Judge White being the judicial officer who dealt with the applicant on each occasion of his appearing for sentence.
I do not propose to record those remarks as they are already on the record in the District Court and on the record of this Tribunal in respect of this case. However, on any reading of them, it is pertinent and proper to say that Judge White, on the first occasion of dealing with Mr Levi, extended sympathy and understanding of his youth and of his background (a background which I acknowledge is established by the evidence to have been one of deprivation and hardship) resulting in a sentence tempered with leniency and designed to give Mr Levi an opportunity under appropriate supervision to come to grips with his problems and his lifestyle. The sentence was that he be placed on probation for three years. It was imposed on 18 December 1997. A mere four months later, Mr Levi was back before Judge White on 20 April 1998 for the offence of robbery of the BP Garage at Mulgrave on 4 March 1998. He was armed with a knife, he stole $344 and four packets of cigarettes.
As if to claim amelioration for that offence, Mr Levi said that prior to committing it he had smoked six or seven so-called "cones" of marijuana. He said in evidence before me that two or three of these so-called "cones" were normally sufficient to get him "off his face".
It is customary for matters of this nature, if claimed to be explanatory of the fact that an offence was committed, to be placed before the Sentencing Judge as they are factors which are relevant to considerations which govern sentence. In my view they are of marginal relevance only to a question of deportation under Section 200 of the Migration Act. That Section is concerned primarily with the nature of the offence. In any event, I do not regard self-imposed affectation by drugs or alcohol to operate as any excuse for the commission of an offence and certainly not to operate in amelioration of that offence.
Paragraph 6 of the General Direction identifies two primary considerations, one being the interests of a child or children of whom the potential deportee is a parent (a consideration not relevant here) and the expectations of the Australian community. Paragraph 7 of the General Direction acknowledges that there are other considerations relevant in individual cases and identifies two of the most common as being the degree of hardship which may reasonably be expected to be suffered by the potential deportee and the degree of hardship to other Australian citizens or to permanent residents that would reasonably be expected as a result of the removal from Australia of the potential deportee.
It is acknowledged that the expectations of the Australian community are that that community will be protected and not put at risk – hence the need for a decision-maker to assess, as best it can be done, the risk of recidivism, which means the risk that the deportee will offend again against the criminal laws of Australia or one of its States or Territories. The General Direction also acknowledges that the community expects that non-citizens who commit, and are convicted of, an offence that is abhorrent to the Australian community and that leads to a sentence of a kind to trigger the power to deport, will be removed from Australia.
Turning my mind to the evidence and the issues raised in this particular case, I am satisfied that consideration of hardship to Ta'alili Levi himself cannot negative a decision to deport him that would otherwise be made.
His removal from Australia will certainly result in hardship in a number of ways to his mother. I have considered that fact and, with considerable reluctance, have concluded that hardship to his mother does not arise with such force as itself either to negative a decision to deport that would otherwise be made.
It has been said on many occasions in the past that the best indicator of future behaviour is the history of past behaviour. I assess the risk of re-offence on the part of Ta'alili Levi, whether he lives in this country or whether he is removed to whence he came, as extremely high. He has been given encouragement in the past by the Criminal Courts to undergo proper supervision and to mend his ways. I am well aware of how carefully a Judge is required in a Criminal Court to explain the privileges and the obligations of probation before making an order for it. By law the Judge cannot make such an order without the actual consent and acceptance of its being made, of the prisoner. It follows that Mr Levi, before he was placed on probation, understood exactly what was involved and what the consequences would be. In a short space of time he flouted the opportunity he had been given by re-offending. Eventually, Judge White had had enough and the sentence which founds the present decision was the result.
Having assessed the risk to the Australian community if Mr Levi remains in this country as being extremely high, and having regard to the principle of protection of the interests of the Australian community, it is my conclusion that the preferred decision for me to make is to affirm the decision under review. Accordingly, that is the decision of the Tribunal in respect of Ta'alili Levi.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Denise Burton
  Secretary
Date/s of Hearing  8.10.01, 15.10.01
Date of Decision  17 October 2001
Counsel for the Applicant        Mr K Priestly
Solicitor for the Applicant         Messrs Williams Graham & Carman
Counsel for the Respondent
Solicitor for the Respondent    Mr D Gallo, Messrs Blake Dawson Waldron