Litili and Minister for Immigration and Multicultural Affairs - [2001] AATA 55

DECISION AND REASONS FOR DECISION [2001] AATA 55

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/777

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TAANIELA FIFITA LITILI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date1 February 2001
PlaceSydney

Decision      The decision under review is affirmed.
  (Sgd Dr D Chappell)
  .............................................
  Deputy President
CATCHWORDS

IMMIGRATION & CITIZENSHIP – deportation – review of deportation order – applicant Tongan national living in Australia – applicant granted permanent residence – conviction for sexual offences committed against applicant's stepdaughter – seriousness and nature of the crime – risk of recidivism – protection of the Australian community – expectation of Australian community that safety of more vulnerable members of society, like children and young people, should be protected – hardship to the applicant – hardship to the applicant's wife – grounds of hardship not sufficient to outweigh considerations of protecting the Australian community.

Administrative Appeals Tribunal Act 1975 – s 37
Migration Act 1958 – ss 200, 201, 500(1)(a)

Afoa v Minister for Immigration and Multicultural Affairs [1999] AATA 82
Bustescu v Minister for Immigration and Multicultural Affairs [2000] FCA 698
Re Collins & Minister for Immigration, Local Government and Ethnic Affairs (1992) 25 ALD 527
Deng v Minister for Immigration and Multicultural Affairs [1999] AATA 386
Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698
Maiorana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119
Re McCutcheon & Minister for Immigration and Ethnic Affairs (1979) 2 ALD 496
Minister for Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Paul William Gunner v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 330
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Waikato v Minister for Immigration and Multicultural Affairs (1999) AATA 36

REASONS FOR DECISION

1 February 2001 Dr D. Chappell, Deputy President

BACKGROUND
Application

Mr Taaniela Fifita Litili (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 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.
Mr Ray Turner, a solicitor, represented Mr Litili at the hearing. Mr Litili also appeared in person and gave personal testimony to the Tribunal. The following witnesses also testified on his behalf:
Ms Glynn Jeanette Litili
Ms Christine Rogers
Mr Ashley Mullins, a solicitor, represented the respondent at the hearing. The following witness testified on behalf of the respondent:
Ms Lynette Jean Vidler
The Tribunal had before it documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975 (T documents). The following exhibits were also received into evidence on behalf of the applicant and respondent:
Exhibit No.     Description    Date
A1      Pre-release report, Department of Corrective Services 18/7/2000
A2      NSW Parole Board, Notification of decision of the Parole Board to authorise release of Mr T.F. Litili        27/7/2000
A3      Copy letter from Mr A. Mullins, Blake Dawson Waldron to Ms Lyn Vidler, Kirkconnell Correctional Centre 12/9/2000
A4      Article: Static 99: Improving Actuarial Risk Assessments for Sex Offenders by R. Karl Hanson, Department of the Solicitor General of Canada and David Thornton, Her Majesty's Prison Service, London
A5      Coding Rules for the Static-99, Corrections Research, Department of the Solicitor General of Canada
A6      Indictment – Mr T.F. Litili    8/8/1994
R1      Report of Ms L. Vidler        11/9/2000
The Tribunal was grateful for the interpreting assistance provided by Viliami Setuu Tupou and Sunia Vaka Tuitupou.
Chronology of Events
The following general facts and chronology of events which have led to the present proceedings were not a matter of dispute between the parties. Mr Litili was born in the village of Kolonga on the island of Tongo-Tapu on 18 December 1945. He was the eldest child in the family and had four brothers and three sisters. The family lived in difficult and poor circumstances with Mr Litili's father working as an unskilled labourer. Mr Litili left school at the age of 14 years to work with his father. At age 17 he joined the Tongan army and served in that force until the age of 24 when he reached the rank of corporal. His army service included a period as a member of the special guard for the Tongan Monarch (see in general T19: 133).
After leaving the military Mr Litili gained employment in the local shipping industry for a period of about five years. During the course of this employment, and while serving as a crew member on an international vessel, he travelled to Australia in March 1981. Upon his arrival in Sydney he jumped ship and remained in Australia as an illegal entrant until meeting his present wife, Ms Glynn Jeanette Thompson. Ms Thompson, then a divorcee with two children from her previous marriage, married Mr Litili on 12 June 1982 (T15: 69). Following this marriage Mr Litili applied to the respondent's officials to regularise his status and was granted permanent residence on 4 September 1985. Since the grant of residence Mr Litili has not travelled outside Australia (see in general T19: 93-94).
Throughout the time that Mr Litili has been in Australia he has been employed in unskilled labouring positions including that of a furnaceman in an aluminium smelter (T19: 134). With the exception of one conviction for drinking and driving in May 1986 (T19: 129) Mr Litili acquired no criminal record until his conviction on 1 September 1994 on a number of counts which have given rise, ultimately, to his presence in this Tribunal confronting the prospect of deportation. The formal details of Mr Litili's conviction are set out in a Certificate of the District Court of New South Wales (see T19: 112-115). Detailed consideration is given later in this decision to the circumstance surrounding this conviction. However, it should be noted here that each of the counts involved in this conviction related to sexual offences committed against Mr Litili's stepdaughter. In order to protect the privacy of the victim of these offences the Tribunal made an order under s35(2) of the Administrative Appeals Tribunal Act 1975 prohibiting publication of the name of the victim or of any other evidence which might lead to her identification (see transcript 30 August 2000: 36-37).
Following his conviction, which took place in the District Court of New South Wales at Parramatta, Mr Litili was sentenced on 8 September 1994 on each of five separate counts of which he had been found guilty by the verdict of a jury (see T19: 116-127). In his sentencing remarks Urquhart J, the trial judge, stated that the five offences of which Mr Litili had been convicted "were committed during the years 1983 to 1986" (T19: 116). Judge Urquhart then imposed separate sentences in relation to each of the five offences:
As to the offence in the first count in the indictment you are sentenced to penal servitude for a fixed term of 12 months, which term commenced on 1 September 1994 and will expire on 31 August 1995.
As to each of the offences in the third, fourth and fifth counts in the indictment you are sentenced to penal servitude for a fixed term of four years, each such term commenced on 1 September 1994 and will end on 31 August 1998.
In respect of the offence in the second count in the indictment you are sentenced to penal servitude for a minimum term of six years and an additional term of two years, making the term of that sentenced 8 years. The minimum term commenced on 1 September 1994 and will expire on 31 August in the year 2000. The additional term will commence on 1 September in the year 2000 and will expire on 31 August 2002. I specify 31 August 2000 as the earliest date upon which you will be eligible for release to parole and insofar as the sentence which I have imposed for the offence in the second count in the indictment be concerned I have considered whether special circumstance exist but have reached the conclusion that they do not.
(T19: 126-127)
It was not a matter of contention between the parties that the conviction and sentence which rendered Mr Litili liable to deportation was that involving each of the offences in the third, fourth and fifth counts in the indictment referred to above (see also T19: 95-96). The offences committed by Mr Litili under count 1 and 2 of the indictment took place prior to him becoming a permanent resident while those in the latter counts occurred after he had been granted this status.
Mr Litili was first warned of the possibility of his deportation under s200 of the Act in a letter sent to him by the respondent's officials in January 1996. In that letter it was stated that its purpose was:
… to inform you that as a result of your conviction(s) for (i) Carnal Knowledge of Girl under 10; (ii) Indecent Assault; (iii) Sexual Intercourse With a Child By Person in Authority at Parramatta District Court on 8 September 1994 you may be liable for deportation from Australia pursuant to Section 200 of the Migration Act 1958 (the Act).
(T19: 136)
Mr Litili acknowledged receipt of this letter on 6 February 1996 (T19: 136). However, the respondent's officials did not give any detailed consideration to Mr Litili's deportation liability until January 2000. It was only at this stage that it was realised that the original warning issued in 1996 had contained a technical error in regard to the offences on which the deportation liability was claimed to have arisen. This error was rectified in a further letter from the respondent, dated 30 March 2000, addressed to Mr Litili which advised him that:
… the only offence for which you are liable for deportation is the offence of sexual intercourse with a child by a person in authority (3 counts) for which you received a sentence of a fixed term of four years.
(T19: 137-138)
It was acknowledged that Mr Litili had received this second document (T19: 139). On 6 April 2000 the respondent's officials presented to the Minister's delegate a report outlining the factors to be considered by him in determining whether or not Mr Litili should be deported. On 1 May 2000 the Minister's delegate decided that deportation should be ordered. An application for review of this decision was received by the Tribunal on 22 May 2000 (T1).
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 10 years in aggregate, and has been convicted of 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 it was not a matter of dispute that Mr Litili's conviction on three counts of sexual intercourse with a child by a person in authority made him liable to deportation within the provisions of the Act. At the time of the commission of the deportable offences between 1 – 31 July 1986 Mr Litili had been a lawful permanent resident of this country for approximately 10 months (T19: 96).
When exercising its discretion under s200 of the Act the Tribunal must, as a matter of law, give significant weight to any policy direction issued by the Minister under s499 of the Act: see 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. Such a direction was issued by the current Minister on 21 December 1998 titled Australia's Criminal Deportation Policy – Criminal Deportation Under Section 200 of the Migration Act 1958: General Direction – Criminal Deportation – No.9 (the Policy Direction) (T3). 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 also provides 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)
Only the first of the primary considerations mentioned in the Policy Direction have relevance to Mr Litili's case since it was not contended that he now stands in any direct parental relationship with his two stepchildren who are now both over the age of 18 and themselves married (see T19: 94). Thus attention needs to be given only to the guidance contained in the Policy Direction concerning the way in which decision-makers should have regard to the expectations of the Australian community as a primary consideration. The Policy Direction states, 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 sole and quite detailed description of the circumstances surrounding the commission of both the deportable offences and other offences of which Mr Litili was convicted is to be found in the sentencing remarks made on 8 September 1994 by Urquhart J. Judge Urquhart noted that at the commencement of his trial before a jury on 8 August 1994 Mr Litili was arraigned upon an indictment containing 13 counts. Mr Litili pleaded not guilty to each count and the jury, when it reached its verdict on 1 September 1994, found him to be guilty on counts 1-5, but not guilty on counts 6-13 inclusive (T19: 116). It has already been mentioned above that the five counts which did result in a conviction involved offences which Urquhart J determined had been committed between 1983 and 1986 (see paragraph 9 above). Judge Urquhart said that he made this finding because:
… there was evidence before the jury given by the complainant of occasions that within that period other than those charged in which 'similar experiences occurred'. The complainant's evidence in this regard was that those similar experiences occurred about ten times and that on such occasions the prisoner would always be in his bedroom, that he would call her into his bedroom, pull her down onto the bed and undress her, that he would put himself between her legs, push his penis into her vagina, move up and down pulling his penis in and out, that he would breathe heavier, his muscles would begin to jerk, he would make grunting noises and then he would pull his penis out and he would then ejaculate onto the bed, give her back her clothes and she would then leave the room.
I refer to that evidence at this stage for the following reasons. Firstly, although only those five offences contained in counts 1 to 5 are the offences as to which the prisoner is to appear is to receive sentence. Nevertheless, those offences cannot be seen either in isolation one from the other four nor in isolation from the context to which that evidence of the complainant which I have mentioned gives rise. I am satisfied beyond reasonable doubt that that is a proper context although I expressly note that the prisoner is not before the court today to be sentenced in respect of a general course of conduct but for the specific five offences as to which he has been guilty. It is, nevertheless, proper that the background of conduct in which the specific offences occurred to be taken into account.
(T19: 116-117)
Judge Urquhart said that at the time of the commission of the offences contained in the first two counts the complainant, Mr Litili's stepdaughter was 8 years of age. Judge Urquhart then went on to describe the offences contained in the first two counts in the following way:
In respect of the offence charged in count 1 the complainant and her brother were at the time in the bedroom of their mother and their stepfather. The stepfather is the prisoner. Whilst what the complainant described as 'mucking around' and 'tickling my stepfather' took place, the complainant's brother was called out of the room by her mother and left, leaving the complainant alone with the prisoner. The prisoner then began to rub the bottom of her legs and moved his hand up putting his hand inside the complainant's jeans and underclothing and then began to rub her vagina. The complainant's mother then called her out of the bedroom and the complainant left. The complainant in the course of her evidence said that she was confused and scared and did not know what had happened and this is not surprising given her age at the time.
…
It was not very long after the commission of that offence, indeed, only about a week later that the offence charged in the second count occurred. On that occasion only the complainant and the prisoner were at the home. The complainant was in the lounge room, the prisoner was in his bedroom. The prisoner called the complainant to the bedroom for the purpose of bringing him a cup of coffee. The complainant made a cup of coffee, took it to the bedroom, placed it on the floor next to the bed and the prisoner pulled her arm and pulled her down. He began to rub her on the top of her breasts, pushed her shirt up, pulled her underpants down, took his tracksuit pants and his underpants off and then pushed himself in between her legs. The complainant felt him push his penis into her vagina and felt him moving, sort of up and down, as she described it. After withdrawing his penis from her vagina the complainant felt a wetness around her legs. The prisoner gave the complainant her underpants, and she put them on and left the room.
(T19: 117-119)
The offences charged in the third, fourth and fifth counts all occurred some years later when the complainant had turned 12 years of age (T19: 119). These offences, the deportable offences, involved the following circumstances:
Insofar as the offences charged in the third and fourth counts in the indictment be concerned those offences occurred on the same occasion. An occasion which took place about a month or so prior to the offence charged in the fifth count and about a month or so after the complainant had turned 12 years of age. Both offences in the third and fourth counts took place in the parents [sic] bedroom.
Again, on this occasion there was no one else at home. The prisoner undressed the complainant and penetrated her vagina with his penis, that is the offence in relation to which the prisoner was charged in the third count in the indictment. After that sexual intercourse took place the prisoner rolled the complainant over onto her stomach and using his penis penetrated her anus, that is the sexual intercourse charged in the fourth count in the indictment.
As to the offence charged in the fifth count in the indictment again, the complainant and the prisoner were alone. On this occasion the prisoner called out to the complainant who was in the lounge room to get him a drink of water. She did so. In the bedroom the prisoner pulled her down onto the bed, took per [sic] pants off, removed some material wrap which he had around his waist and penetrated her vagina using his penis.
(T19: 119-120)

In addition to these offences which have just been described the respondent also sought to tender at the hearing certain statements made by the complainant to the police alleging the commission of further offences of a similar nature involving her stepfather (see in general transcript 31 August 2000: 3-9). Mr Turner, on behalf of the applicant, objected in a vigorous way to this tender for reasons which appear in the transcript. Following a short adjournment the Tribunal then ruled against the admission of these statements for reasons which again do not require further elaboration here but which do appear on the transcript (see transcript 31 August 2000: 9-13).
Applicant's Testimony
Mr Litili, as already indicated, gave personal testimony to the Tribunal utilising the services of a Tongan interpreter. During his examination in chief Mr Litili said that he was aware of the offences of which he had been convicted. Asked by Mr Turner whether he believed that on his release he would commit such offences Mr Litili responded:
I never done anything like that. I don't think so. Anything like that in my life.
(transcript 30 August 2000: 14)
Cross-examined by Mr Mullins on behalf of the respondent, Mr Litili denied that he had committed the offences of which he had been convicted (see transcript 30 August 2000: 15). He said that he had no idea why the victim had made these allegations against him. The allegations had hurt him. He did not believe that he had discussed the allegations with the victim:
I didn't have much time with her because I was working at that time and I came late during the day. By the time I got home, she was in bed. I didn't have much time to talk with her.
(transcript 30 August 2000: 22)
Mr Litili said that he had discussed the allegations with his wife and that she believed that all of "those stories were made up" (transcript 30 August 2000: 22). Mrs Litili, in her personal testimony to the Tribunal confirmed that she continued to believe in her husband's innocence. She indicated that she had been in court at the time of his conviction and had also read the sentencing comments made by Urquhart J (transcript 31 August 2000: 19-20).
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)
It was not contended by the respondent that any prior warning had been given to Mr Litili about the risk of deportation (Policy Direction: paragraph 13(a)), nor that Mr Litili had previous convictions which should be taken into consideration (Policy Direction: paragraph 13(b)). It was, however, contended by the respondent that the prognosis for Mr Litili's rehabilitation was poor and that as such he represented an unacceptable risk to the community of committing further offences. This contention was disputed by the applicant.
Performance in Prison
As part of their inquiries into Mr Litili's deportation liability the respondent's officials commissioned a report from the Probation and Parole Service of the Department of Corrective Services regarding Mr Litili's performance in prison and his prospects of rehabilitation (T19: 133-135). This report, dated 7 February 2000, was said to be based upon information obtained from interviews with Mr Litili and his wife, custodial staff and also from an inspection of custodial records. It noted that in discussions with the author of the report, Mr John Pelepezuk, a parole officer at the Kirkconnell Correction Centre, Mr Litili and his wife continued to maintain that he was innocent of any offences. It was stated that:
… Mr Litili reflected on his situation with extreme remorse and self-pity. Despite this, he has not expressed anger or resentment towards the victim, his step-daughter. The victim has long since left the family home and is presently living in a de-facto marital relationship and is the mother of three children. The prisoner and has [sic] wife have contact with their son who is married and has also left home.
Mr Litili has made little use of the psychological services available to him in custody. The main reason for this appears to be his claim of innocence of the offences as well as his poor literacy. He fears that he may have not understood some of the language used in psychological counselling (particularly earlier in the sentence). He was also fearful of being ridiculed for inadvertently not expressing himself appropriately in a counselling situation.
Discussion with psychological staff at Kirkconnell reveal that the prisoner arrived too late for inclusion in the 1999 sex offenders program. It is reported that the next program is due to commence in July, 2000. The psychological unit does not have the resources to conduct specific one-to-one counselling with Mr Litilli.
(T19: 134)
The report indicated that throughout his imprisonment Mr Litili had maintained "excellent work and conduct reports". He was viewed by his most recent supervisor as a trusted and hardworking inmate. He had also pursued literacy training while at the Junee Correctional Centre. The report concluded with the following assessment:
The prisoner presents as a quiet and reserved person with a background based on customs and societal mores very different from those he encountered in Australia. These may have impeded his level of social functioning as well as creating conflict and tension in his family situation. His conviction and subsequent custodial experience appears to have had a profound salutary effect, as well as facilitating personal insights and awareness of the Australian culture. Of significance is the prisoner's sustained good conduct and application to prison tasks, and regulations. This may be indicative of his capacity to order and lead a responsible lifestyle upon his eventual release. Some concern remains in that the prisoner has not availed himself of psychological counselling, to address the implications of the offences. As mentioned previously, these facilities are somewhat limited and specific and are at present not available to the prisoner.
(T19: 135)
In a later pre-release report prepared by the Probation and Parole Service for consideration by the Parole Board in July 2000 (A1) it was noted that Mr Litili had commenced participation in the Educating Sex Offender (ESO) Program at Kirkconnell and would complete this course prior to his earliest release date in August 2000. The report also stated that:
Mr Litili's participation in this programme does not alter his perception of innocence. In interview, he maintains his innocence and viewed his participation in the course as assisting possible parole release.
(A1: 1)
In regard to Mr Litili's post-release plans, should he be allowed to remain in this country, the report indicated that it was his intention to reside with his wife at their home in Whalan. A home visit by the Probation and Parole Service had indicated this was a satisfactory post-release address. Two nearby neighbours were aware of Mr Litili's offences but were still supportive of him while his wife continued to maintain her husband's innocence. There were no children resident in the home and no contact was now being made with the victim of the offence. A pre-school and primary school were within a 200 metre proximity of the Litili home but they were said to be enclosed by brick and barbed wire fencing.
Based on this assessment the report recommended parole but subject to conditions concerning non-contact with the victim; non-contact with persons under 16 years; non-medical counselling and continued education or employment (A1: 2). On 27 July 2000 the Parole Board determined that Mr Litili should be released to parole on 31 August 2000 under the general conditions identified above (A2). However, upon reaching the specified parole release date the respondent took Mr Litili into Immigration custody. Mr Litili has remained in such custody until the present time.
Psychological Testimony
Following the presentation at the hearing of the applicant's case, including the testimony provided by Mr and Mrs Litili, the respondent indicated that it was not proposing to call any witnesses to testify on its behalf (see transcript 31 August 2000: 20). The Tribunal then indicated that it would find it of assistance to have some expert evidence from persons knowledgeable about sex offenders and their risks of recidivism. The Tribunal also stated that if such expert evidence could not be obtained readily it would be of assistance to at least have an opportunity to question one or more of the persons who had prepared the various reports about Mr Litili (see transcript 31 August 2000: 20-21). As a result of this intervention by the Tribunal the respondent indicated that it would seek to obtain a report from a psychologist who had been involved in the sex offender treatment program attended by Mt Litili at the Kirkconnell Correctional Centre. An adjournment was then granted for the obtaining of this report (transcript 31 August 2000: 27).
For reasons outside the control of both the Tribunal and the parties it was not possible to reconvene the hearing for consideration of this additional evidence until 19 December 2000 (see transcript 19 December 2000: 2-3). At this reconvened hearing a psychological report compiled by Ms Lynn Vidler, a psychologist working at the Kirkconnell Correctional Centre, was received into evidence (R1). Ms Vidler also provided personal testimony to the Tribunal.
In her report Ms Vidler indicated that Mr Litili had commenced the ESO Program at Kirkconnell in June 2000. This program did not constitute treatment for sexual aggression but rather was an eight week educational course which aimed to assist offenders to overcome common misunderstandings about sexually abusive behaviour, to challenge their thinking errors, and to motivate them to enter treatment. When he had entered the course Mr Litili had denied committing the offences for which he had been convicted.
Ms Vidler reported that Mr Litili's actual performance on the course had been satisfactory and that he had participated in group activities when required. However, his limited command of English may have resulted in him not obtaining a full understanding of the course content and he had not completed the entire program as he had been transferred out of Kirkconnell as a result of his deportation proceedings. On the specific issue of Mr Litili's risk of re-offending Ms Vidler's report referred to an actuarial risk assessment that she had conducted. This assessment was known as the Static 99 test:
…The Static 99 is a new actuarial scale developed by Hanson and Thornton (1999) to predict sex offence recidivism. The scale uses static risk factors to calculate risk of sexual offence recidivism and gives equal weight to the anti-sociality and sexual deviance component of sexual offending. Mr Litili was initially assessed as having a low risk of reoffending. However, a review of Mr Litili's offence history, and the application of recently revised coding rules for the Static 99, indicates a medium-low risk of reoffending. This score is based on Mr Litili having been charged with five sexual offences in 1986, and having committed an offence less than two years after marrying the victim's mother.
Offenders in the Static 99 normative sample with a score similar to Mr Litili's had a 12% chance of reoffending in a sexual manner over a five year period, a 14% chance over ten years, and a 19% chance over fifteen years.
Mr Litil's risk of recidivism would be increased if he were to share accommodation, or have unsupervised contact, with a female child.
(R1: 2)

In her report Ms Vidler concluded on the basis of this assessment that Mr Litili, who continued to deny having committed the offences and had not completed any sex offender treatment, had "a medium low risk of sexual recidivism". If Mr Litili should be allowed back into the community it was recommended that he should not have any contact with his victim; not be permitted to engage in activities where he might come in contact with children; and be required to live in accommodation where he would not come into such contact.

During the course of her personal testimony to the Tribunal Ms Vidler acknowledged under cross-examination that she had not interviewed Mr Litili in person to assist her in preparing her report. Rather, she had relied upon file material including the statement made to the police by the complainant which contained further allegations about offending by Mr Litili (see paragraph 23 above; transcript 19 December 2000: 12-13). Ms Vidler also acknowledged that the Static 99 risk assessment utilised what was termed an index offence to calculate an individual's prospects of re-offending. In the case of Mr Litili this index offence comprised the recent charges brought against him and of which he had been acquitted at his trial. Utilising the Static 99 scale, and taking account of these recent charges, Mr Litili had a 12% chance of re-offending in a sexual manner over a five-year period. This amounted to a medium low risk with a score of 3 out of a maximum of 12. A low risk score would be 0 to 3 (see transcript 19 December 2000: 18-19).
As a result of the questioning of Ms Vidler about the application of the Static 99 risk assessment test further documentary evidence was presented to the Tribunal about the way in which this test had been constructed and interpreted (see A4-6). The Tribunal also questioned Ms Vidler about this test and its validation procedures. Ms Vidler indicated that it was a test which was "based on work which is described as still being in progress". Ms Vidler had checked with various colleagues to ensure that she had interpreted the coding rules correctly and in particular those which required the consideration of charges which had not resulted in a conviction (see in particular transcript 19 December 2000: 36-37).
Deterrence
The 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 Litili will act as a deterrent to others (Policy Direction: paragraph 14). It was contended by the respondent that Mr Litili's deportation would deter other potential offenders from committing similar offences but the Tribunal did not receive any specific evidence regarding this factor. Nonetheless, the issue will be discussed further at the conclusion of this decision.
Hardship
Paragraph 21 of the Policy Direction observes that:
It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include:
the degree of hardship which may be suffered by the potential deportee; and
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)

Paragraph 21(a): Hardship to Applicant

In assessing the degree of hardship which may be suffered by Mr Litili, 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:
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;
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;
the degree and extent of the potential deportee's ties with the likely country of return;
the strength of other family, social or business ties in Australia;
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
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)
As is already apparent from the evidence which has been reviewed Mr Litili has an on-going marital relationship with his wife who is an Australian citizen (Policy Direction: paragraph 22(a)). Mrs Litili told the Tribunal that if her husband were to be deported she would accompany him back to Tonga. Such a move would entail her having to start all over again in a new country with a language that she did not speak. She thought that it would take at least two years before they had enough money for her to follow Mr Litili to Tonga in order to then build a home and set up a small business. Mrs Litili said that if her husband was allowed to remain in Australia she would be able to provide him with the appropriate moral and physical support that he required (see transcript 31 August 2000: 14-15).
In his personal testimony Mr Litili referred to a written statement that had been prepared on his behalf while he was in prison which set out his feelings about being returned to Tonga as well as the nature of his ties with this country (see transcript 30 August 2000: 12). In that statement he had the following to say about the hardship that he would suffer if deported:
The day of the deportation interview I was shocked that I could possibly be required to face yet further punishment than that which I have already endured, and all for something I had not done. I was also very much afraid as I had known that once before the system which I still believe in, had failed me. With all of the questions being asked of me and through my fear and confusion I found the situation exceedingly difficult.
Since I arrived in Australia my life has changed in many ways. I have known perfect happiness and I have known the depths of despair as well. Throughout it all I still maintain my pride in being a part of this country which I have made my home and it is imperative that I remain here.
My wife and I are becoming far too old to face the prospect of moving to Tonga, and I do not wish to return to such a poor place, taking my wife away from her family, roots, and all that she knows.
Australia is my home, I have contributed a great deal to enriching community life and I still enjoy the support of those people. I wish to return to what I have done for all of my life which is to work with the community to help others live in the fullness of life.
(T15: 60)

In his earlier interviews with the respondent's officials Mr Litili reiterated that he had maintained close and regular contact with his wife throughout his imprisonment. He had no contact with his father or siblings while he was in gaol but believed that his father was still living in the United States and that his siblings lived either in Tonga or in North America. He had lost contact with all of his immediate family members for about the past six years. Mr Litili also told the respondent's officials that he suffered from high blood pressure and had to take daily medication as a form of treatment. He was very much involved in church activities. He had left Tonga in 1981 and he was not sure if he still had relatives in that country. Any possible deportation back to Tonga would be very difficult for both him and for his wife (see T19: 102-103).
Paragraph 21(b): Hardship to Other Persons
Mention has already been made of Mrs Litili's evidence about the hardship she said she would experience. In addition to her personal testimony, and statements made by her to the respondent's officials (see T19: 151-153) evidence was also provided to the Tribunal from a number of persons who stated that they knew both Mr and Mrs Litili and that Mr Litili's deportation would cause both the family and friends of the family significant hardship and loss (see T15: 33-47, 61-64). One of the persons involved in writing these statements of support on behalf of the applicant, Ms Christine Rogers, gave personal testimony to the Tribunal (transcript 30 August 2000: 58-64; T15: 33). Ms Rogers said that she was a cousin of Mrs Litili and that was how she knew Mr Litili. She was aware that he had been convicted of certain sexual offences involving children. She confirmed that she would have no hesitation entrusting the care of her own children to Mr Litili. She had been a young girl herself when she first met him and he had never tried to take advantage of her. Ms Rogers said that she had never had an opportunity to discuss the offences with Mr Litili. She had, however, discussed them with Mrs Litili and it was her belief that the allegations against Mr Litili were not true and that the charges had been fabricated by Mr Litili's stepdaughter.
CONSIDERATION
Policy and Submissions
The various matters which require consideration by the Tribunal in reaching a correct and preferable decision about a deportation case are in general well defined and understood. The relevant guidelines contained in the Policy Direction, which have been set out above, make it clear that most weight should be given to the protection of Australian society, while less weight should be given to the views of the offender and that person's family and associates and any hardship to them arising from a deportation decision. The decision to deport a person from Australia arises from the responsibility to protect the community from the possibility of further criminal behaviour by a person like Mr Litili, or to expel from this country a non-citizen who has seriously abused the privilege of residence accorded to them by the community. It is not, however, the purpose of deportation to impose further punishment upon a person like Mr Litili who has already served a minimum term of six years in prison for his various sexual offences.
Reference has been made earlier to the provisions of paragraph 8(b) of the Policy Direction which requires the Tribunal to consider, in the context of the expectations of the community, that non-citizens who are convicted of crimes that are abhorrent to the community will be removed from this country. Paragraph 15 of the Policy Direction also states the following:
15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. Decision makers should have due regard to the Government's view in this respect.
(Policy Direction: paragraph 15)
The Tribunal has already expressed its views in a number of recent decisions about the way in which it should seek to interpret the provisions of this particular paragraph of the Policy Direction: see Afoa v Minister for Immigration and Multicultural Affairs [1999] AATA 82; Deng v Minister for Immigration and Multicultural Affairs [1999] AATA 386. The Tribunal has also considered the nature of community attitudes towards offences against children of the type committed by Mr Litili, and their general relationship to the provisions of paragraph 15 of the Policy Direction: see Waikato v Minister for Immigration and Multicultural Affairs (1999) AATA 36.
In written submissions made by both parties at the conclusion of the hearing of this matter, the applicant and the respondent drew the Tribunal's attention to the authorities which indicate "that it is impermissible for the Tribunal to impugn the conviction on which a deportation order is based": Minister for Immigration and Multicultural Affairs v SRT (1999) FCR 234; Minister for Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441. Having regard to these authorities, the Tribunal accepts that in the present case it is bound by the conviction by a jury of Mr Litili on five counts which have been described in detail earlier in this decision. The Tribunal also accepts that, as contended by the respondent in its submissions, the Full Federal Court in Gungor makes it clear that the Tribunal cannot make findings of fact which are inconsistent with Mr Litili's conviction on these counts.
It was further contended by the respondent that while not all of the offences for which Mr Litili was convicted are deportable offences it was still proper for the Tribunal to consider the totality of Mr Litili's criminal offending: see Maiorana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119. The Tribunal accepts this contention and has already referred to Urquhart J's sentencing remarks about the two offences of which Mr Litili was convicted which were committed prior to him becoming a permanent resident. However, the Tribunal also excluded from consideration evidence which was tendered on behalf of the respondent about a number of alleged offences of which Mr Litili was acquitted at his jury trial (see paragraph 23 above). Such rejection is completely appropriate in the context of the authorities which have been referred to since it would seem to be as impermissible for the Tribunal to impugn a finding of acquittal as it is for the Tribunal to impugn a conviction.
There is no doubt that the offences of which Mr Litili has been convicted fall within the parameters of the crimes contemplated by the Minister in paragraph 11 of the Policy Direction as being very serious. Paragraph 11 states:
11. It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
…
(c)sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence;
…
(k)crimes against children;

Because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children.
(Policy Direction: paragraph 11)

In his submissions made on behalf of Mr Litili, Mr Turner did not dispute that the offences committed by Mr Litili were serious. He did not, however, accept that these offences were ones which brought Mr Litili within the framework of paragraph 15 of the Policy Direction. While the offences were ones which the community would look upon with distaste they were not abhorrent. To suggest that all offences of this type fitted within the term would be to elevate the act of deportation to a punishment in addition to that imposed by the courts, and as such would constitute an error of law: see Paul William Gunner and Minister for Immigration and Multicultural Affairs (1997) 50 ALD 330; Re McCutcheon & Minister for Immigration and Ethnic Affairs (1979) 2 ALD 496 at 498; Re Collins and Minister for Immigration, Local Government and Ethnic Affairs (1992) 25 ALD 527. Mr Turner contended that a good indicator of community attitudes towards an offence was the sentence imposed by the court. In the case of abhorrent crimes it would be anticipated that an offence would attract a maximum sentence. However, in the case of the deportable offences of which Mr Litili was convicted he had only received a sentence of 4 years imprisonment when the maximum sentence available was 20 years.
Mr Mullins, in his submissions made on behalf of the respondent, contended that the seriousness of the sexual assaults committed by Mr Litili was indicated by the fact that the deportable offence carried a maximum sentence of 20 years. Further, for the crimes that had been committed by Mr Litili he had received concurrent sentences which had resulted in a minimum term of six years imprisonment with an additional term of two years. These sentences should be considered in combination when assessing the gravity of the crimes which had been committed by Mr Litili. They were crimes which were abhorrent to the Australian community and having regard to the Policy Direction it was the expectation of that community that Mr Litili would be removed from Australia. The offences that he had committed were against his stepdaughter and they represented a gross betrayal of trust in relation to a child who was under Mr Litili's care at the time.
In regard to the specific risk of recidivism by Mr Litili it was contended by Mr Turner that this risk must be assessed as low. Mr Turner submitted that the Tribunal should reject the evidence presented by Ms Vidler, based upon the actuarial risk assessment that she had conducted, that Mr Litili's risk of re-offending was medium-low. In reaching this conclusion Ms Vidler had based her findings on information which included charges of which Mr Litili had been acquitted. Thus for the Tribunal to now rely upon these unsubstantiated charges would be to impugn a finding by the court that Mr Litili was not guilty of these offences. Alternatively, it would be most unfair to Mr Litili to proceed on the basis of this risk assessment and Ms Vidler's report should be given little if any weight accordingly. Mr Turner further submitted that there was no logically probative evidence on which to base a finding that the risk of Mr Litili re-offending was other than acceptably low. Should he be released back into the community there were sufficient safeguards included in his parole release conditions to ensure that the community was not put at risk.
These contentions made by Mr Turner on behalf of the applicant were contested by the respondent which submitted that the Tribunal should accept Ms Vidler's conclusions that Mr Litili's risk of re-offending was medium-low, based on the risk assessment she had conducted using the Static 99 test. Alternatively, if the Tribunal did accept the applicant's submission that Ms Vidler's report should either not be considered at all or be given little weight the Tribunal should still take account of the oral evidence given by Ms Vidler, which was uncontested, which supported the existence of a real risk of recidivism on Mr Litili's part.
The Tribunal's Views
A jury has found Mr Litili to be guilty of five counts involving sexual offences committed against his stepdaughter. The Tribunal is bound by that verdict. It is a verdict, however, which both Mr Litili and his wife continue to dispute. As Mr Litili is reported to have informed the respondent's officials during an interview in January 2000 he did not wish to talk about the offence because it "was not true people made up stories, I pleaded not guilty the story was bull" (T19: 145). During the course of his personal testimony to the Tribunal Mr Litili continued to deny that he had committed any offences and at the same time offered no explanation as to why his stepdaughter should have made up such stories.
The evidence before the Tribunal shows that Mr Litili was convicted of offences which took place between the years 1983 to 1986. That evidence also shows that he became involved in a role as a stepfather to his wife's daughter following his marriage to Mrs Litili in June 1982. At the time of this marriage Mr Litili was still an illegal entrant to this country and he did not acquire permanent residence until September 1985. While, for reasons which have been explained earlier, that acquisition of permanent residence was of legal relevance in regard to the commission of the deportable offences his actual offending commenced at a much earlier time.
The evidence surrounding the commission of each of the five offences of which Mr Litili stands convicted has already been described. That evidences shows that when Mr Litili committed the first two of these offences against his stepdaughter she was eight years of age. The remaining offences were committed several years later when Mr Litili's stepdaughter was 12 years of age. Throughout the period over which all of the offences were committed Mr Litili stood in a relationship of trust to his stepdaughter, as was emphasised by Urquhart J during the course of his sentencing remarks:
After coming to Australia the prisoner married the mother of the complainant. There were two children, the complainant and her younger brother and the prisoner adopted the role of stepfather and there is clear evidence of that role which he played. I do not propose to go into all of the evidence as to the household. It is sufficient to note that by becoming the stepfather of the complainant a relationship of trust ought to have arisen. I say 'ought to have arisen' because it is clear from the fact that these offences were committed that that very important relationship was very seriously broken. I shall not dwell upon that aspect of the matter.
(T19: 121-122)
Judge Urquhart also described the way in which the offences of which Mr Litili stands convicted originally came to the notice of the authorities:
After the offence charged in the fifth count in the indictment was committed the complainant spoke with a school friend and on the same day to a school teacher and the authorities were then made aware of the allegations. It was at about that time that the prisoner left the family household.
(T19: 122)
After the making of these allegations various criminal proceedings were commenced which led to the ultimate jury conviction of the offences charged in the five counts listed earlier. As Urquhart J remarked:
… That there was a committal in respect of those charges, that there was an earlier trial in respect of those charges and that there has been the most recent trial in respect of those and other charges, in my view, do not assist the prisoner in respect of sentence. Indeed, in my view, they highlight something which is not without significance and that is that there has not been a plea of guilty. Of course, that is not to say that the prisoner is to be penalised for entering a plea of not guilty. Rather it is the case that the prisoner cannot receive any benefit which would have, or may have, flowed to him had he entered a plea of guilty to those charges on which the jury has found him to be guilty.
(T19: 123)
When imposing sentence upon Mr Litili Urquhart J said that he had no victim impact statement before him but:
… commonsense would dictate that there has been and may well continue to be adverse consequences to the complainant. I do not propose to enter into the area of speculation as to those consequences it is suffice [sic] to note that common sense would dictate such consequences.
(T19: 124)
It is quite apparent from all of the evidence which has been reviewed by the Tribunal, as well as from the comments referred to by Urquhart J, that the offences of which Mr Litili has been convicted are very serious. Their gravity is further reinforced by the sentences imposed by Urquart J. These sentences, which were served concurrently, have resulted in Mr Litili being imprisoned for a significant period of time.
While in prison Mr Litili has received positive appraisals of his work and related performance. However, because of his continued denial of guilt he has not participated in any sex offender treatment program. Towards the end of his minimum term he did enrol in the ESO program at the Kirkconnell Correctional Centre where he was then held in custody. The evidence provided by Ms Vidler about this particular program was that it comprised an educational rather than a treatment experience for its participants.
Mention of Ms Vidler's evidence leads to consideration of the risk that Mr Litili now presents to the Australian community of re-offending. Based on her use of the Static 99 risk appraisal test Ms Vidler judged Mr Litili's risk of re-offending to be medium-low. Ms Vidler admitted that her assessment had not included any interview with Mr Litili but she felt confident about the way in which she had interpreted the coding provisions of the Static 99 test, and in particular those provisions which required the inclusion of charges of which Mr Litili had been acquitted.
The Tribunal found Ms Vidler to be a helpful and informed witness who acknowledged that the Static 99 test was one which was still in a developmental phase and, as its title suggested, one which only measured static rather than dynamic elements associated with the risk of offending. She admitted that if the charges of which Mr Litili had been acquitted were not taken into account in the Static 99 test Mr Litili's overall risk of re-offending would be judged to be low rather than medium-low.
Having regard to the developmental stage at which the Static 99 test remains, as well as to the obvious dangers and unfairness associated with a test which purports to rely upon unproven charges of sexual offending like those alleged against Mr Litili, the Tribunal places no weight on the Static 99 test results contained in Ms Vidler's report, and also elaborated upon in her personal testimony. Nonetheless, the Tribunal is quite satisfied from the evidence which has been reviewed, and in particular that presented to the Parole Board in July 2000, that a risk does remain of Mr Litili re-offending. This risk may be judged to be low but it is a real risk and one which is compounded by Mr Litili's continuing perception of his innocence and his consequent lack of participation in any treatment program to address his criminal offending.
CONCLUSION
Having given very careful consideration to all of the evidence before it the Tribunal reaches the conclusion that given the gravity of Mr Litili's pattern of offending, the risk which has been identified of him committing further offences of this type is not one which should be accepted by the Australian community. That community has a legitimate expectation that the safety of the more vulnerable members of our society, like children and young people, should be protected against the actions of non-citizens like Mr Litili. The offences of which Mr Litili stands convicted are repugnant and many members of the community would undoubtedly describe them as being abhorrent. The Tribunal does not find it necessary, however, to attach such a label to Mr Litili's offending since it believes that on risk factors alone there are sufficient grounds for expelling Mr Litili from Australia.

The Tribunal acknowledges that by deporting Mr Litili both he and his wife will suffer significant hardship. For Mrs Litili, in particular, who has indicated that she would go to Tonga with her husband the transition to a new and unfamiliar environment will be a painful experience. While these are matters to which significant weight must be attached they are not sufficient by themselves to outweigh the responsibility which the Tribunal has to the Australian community to protect it from the possibility of further criminal behaviour by Mr Litili. The decision under review is affirmed.
I certify that the 68 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   30-31 August & 19 December 2000
Date of Decision  1 February 2001
Solicitor for the Applicant              Mr Ray Turner
  (Tzovaras Legal)
Solicitor for the Respondent    Mr Ashley Mullins
(Blake Dawson Waldron Lawyers)