Mezbur and Minister for Immigration and Multicultural Affairs - [2001] AATA 892

DECISION AND REASONS FOR DECISION [2001] AATA 892

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1104

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Asim Mezbur
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date26 October 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Criminal deportation – Applicant a non-citizen present for less than 10 years when convicted of serious criminal offences – had drug, physical and mental health problems - father of one child who lives in Australia- convicted of further criminal offences after release from prison – deportation order made and subsequently revoked –– serious nature of the crimes - risk to the Australian community – risk of recidivism – best interests of the child – international obligations – whether protection obligations owed under Refugees Convention – where principal risk to Applicant one of discrimination – where expectations of Australian community outweighed best interests of child and hardship caused to Applicant

Migration Act 1958 – ss 200, 201, 499(1), 499(2A),
Ministerial Direction No. 9 – "Australia's Criminal Deportation Policy – Criminal Deportation under s 200 of the Migration Act 1958"

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Mezbur and Department of Immigration and Multicultural Affairs (1993) 31 ALD 409

REASONS FOR DECISION

Mr R P Handley

This is an application by Asim Mezbur ("the Applicant") for the review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 15 December 1999 to order the deportation of Mr Mezbur from Australia.
At the hearing, Mr Mezbur represented himself and the Respondent was represented by Nathan Cureton, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents") together with the other documents tendered by the parties. Mr Mezbur gave oral evidence in person and Nevzeta Akeljic by conference telelphone.
BACKGROUND

Mr Mezbur was born in Sarajevo, in what was then Yugoslavia, on 12 August 1962, and is now aged 39. Sarajevo is now located in Bosnia – Herzegovina. Mr Mezbur left Yugoslavia on 9 January 1979 when he was 14 years. He caught a train to Slovenia and crossed the border into Italy. He then lived for 4 years with his sister in Italy before being arrested by the Italian police as an illegal migrant and being taken to a refugee camp. He came to Australia as a refugee on 7 July 1981 at the age of 18 years and 11 months, when he was given permanent resident status.
On 9 July 1982, 12 months after Mr Mezbur arrived in Australia, he stole $500 from the purse of a girlfriend, for which he was fined $250 and ordered to pay compensation of $500. Then, on 20 September 1982, he was arrested and charged with attempting to commit arson as part of a proposed insurance fraud. On 7 February 1983, he was sentenced at Newcastle District Court to 2 years imprisonment. This is the first offence for which Mr Mezbur was liable to be deported.
On 6 October 1983, Mr Mezbur was released on remission and went to Glebe Half Way House. Following an interview with officials of the Department of Immigration, he was given an oral and written warning on 12 October 1983 that his conduct left him liable to deportation. On 28 October 1983, he applied for Australian Citizenship, but that application was rejected on 13 December 1983, as he was not considered a person of good character.
On 18 September 1984, Mr Mezbur was arrested and charged with breaking, entering and stealing. He was given bail, but absconded. This is the second offence for which he was liable to deportation. On 19 April 1985, he was arrested for exceeding the speed limit and was also charged with giving a false name and address. He failed to appear at Kogarah Court to answer the charges on 30 April 1985 and failed to appear at Parramatta Court to answer the breaking, entering and stealing charges on 16 April 1985. He was, however, eventually located by the police and brought before the Court to answer these and other charges. On 14 April 1987, he was sentenced at Parramatta District Court to 2 years and 6 months imprisonment on the 1984 charges of breaking, entering and stealing, a further 18 months for a 1985 crime of obtaining financial advantage by a false or misleading statement, and a concurrent term of 18 months for a 1987 crime of attempting to obtain an advantage by deception, a total of 4 years. These later offences related to attempts to obtain money from Avco Financial Services Limited based on false representations.
On 27 May 1988, Mr Mezbur was released on parole. This was revoked on 20 September 1988 because he failed to comply with reporting conditions. However, he was not arrested again until 7 March 1990 when he was sent back to prison to complete his original sentence. He was given parole on a second occasion on 27 March 1991, but this was also revoked, in November 1991, for failure to comply with reporting conditions. However, he was not arrested until 18 June 1992, when he was arrested in Melbourne for drink driving. A finger print computer check established his true identity and the existence of outstanding charges and he was taken to Sydney where he was in prison until 10 January 1993, when he was released on parole. This latter period of prison was in respect of the breach of the earlier parole, but also for a number of other offences with which he had been charged in the meantime, including offences relating to the cashing of two cheques for $12,600 each.
On 25 April 1989, Mr Mezbur commenced living in a de facto relationship with Nevzeta Akeljic. Ms Akeljic had two children from a previous relationship and she subsequently had one child by Mr Mezbur, Alan Ramiz, who was born on 5 November 1992.
Mr Mezbur was interviewed by a Department of Immigration officer on 21 March 1988 and warned that he was liable to deportation. On 19 December 1991, a delegate of the Respondent made a deportation order in respect of Mr Mezbur. On 22 January 1993, Deputy President McMahon of this Tribunal affirmed this decision, (Mezbur and Department of Immigration Local Government and Ethnic Affairs (1993) 31 ALD 409; Supplementary T Documents 7). On 18 February 1993, Mr Mezbur applied to the Federal Court for a review of the Tribunal's decision and, on 15 October 1993, the Federal Court remitted the matter, by consent, to the Tribunal for reconsideration according to law (Supplementary T Documents 7). On 14 November 1995, the Tribunal ordered, by consent, that the deportation order dated 19 December 1991 be revoked (Supplementary T Documents 1). The reason for the Department agreeing to the revocation of the deportation order was the state of the war in Bosnia and the impracticability of returning Mr Mezbur there at that time.
On 29 December 1994, Mr Mezbur committed the offences of assault occasioning actual bodily harm (2 counts) against Ms Akeljic, assault police, receiving, possession and supply of a prohibited drug, and driving while disqualified. On 8 February 1995, Mr Mezbur was sentenced to 3 months imprisonment for these offences at Liverpool Local Court. On 3 March 1995, Mr Mezbur was sentenced to 9 months imprisonment with a 3 month additional term for breaching a recognisance given on 30 August 1990 on 24 December 1994.
On 17 August 1995, Mr Mezbur committed the offence of obtaining a benefit by deception for which he was sentenced at Liverpool Local Court on 27 September 1995 to 12 months imprisonment with an additional 4 months. On 5 September 1996, Mr Mezbur committed the offence of obtaining money by deception for which, on 11 July 1997, he was sentenced by Sydney District Court to a fine of $15,000 and 6 months imprisonment.
Between 19 June 1997 and 26 June 1997, Mr Mezbur committed two counts of attempting to obtain a financial advantage by deception for which he was sentenced, on 5 December 1998, at Sydney District Court, to a term of 12 months imprisonment with an additional term of 9 months.
On 15 March 1999, Mr Mezbur was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("the Department") at Long Bay Jail. On 20 September 1999, the Department concluded that deporting Mr Mezbur to Bosnia would not be in breach of Australia's protection obligations to Mr Mezbur. On 15 December 1999, a deportation order was signed by a delegate of the Respondent, of which Mr Mezbur was notified by letter dated 3 May 2000. On 18 July 2000, Mr Mezbur lodged an application for a review of the deportation order by the Tribunal.
On 19 December 1999, Mr Mezbur was charged with being in custody of stolen goods for which on 13 January 2000, he was sentenced at Central Local Court to 4 months imprisonment.
RELEVANT LAW AND POLICY

Section 200 of the Migration Act 1958 ("the Act") provides that the Minister may order the deportation of a non-citizen to whom Division 2 of the Act applies. Under s 201, the Minister may order the deportation of non-citizens who have been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than ten years. Mr Mezbur arrived in Australia on 7 July 1981 and was given permanent resident status. It is not in dispute that he committed offences for which he was sentenced to terms of imprisonment of not less than one year on 20 September 1982 and 18 September 1984. Thus, he is liable to deportation within the framework of these provisions of the Act.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499 (2A), the personal body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499 (2) states that s 499 (1) "does not empower the Minister to give directions that would be inconsistent with this Act or the Regulations".
On 21 December 1998, the Minister issued a General Direction under s 499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation under Section 200 of the Migration Act 1958" (Direction No. 9). Direction No. 9 states in paragraph 4:
The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian Community and to exercise a choice on behalf of the Australian Community as a whole as to who should be allowed to remain in the community.

The 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. The two primary considerations to be considered in making a decision whether or not to deport a non-citizen, set out in paragraph 6, are:

(a) the expectations of the Australian Community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.

In addition to these primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases. Two of the most common are:
(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee;
(b)the degree of hardship to Australian Citizens or permanent residents that would reasonably be expected to flow from deportation.

Direction No. 9 provides further guidance in relation to each of these considerations. This further guidance will be discussed specifically in relation to the particular facts of Mr Mezbur's case.
ASIM MEZBUR'S EVIDENCE

Mr Mezbur said he was brought up in Sarajevo. His father was an anti-communist and Muslim and his mother was a Serb. At school, he was discriminated against because of his Muslim background: he was bashed by teachers and not allowed to play in the soccer team. At the age of 14, he left Yugoslavia and went to Italy where he lived with his sister until he was arrested by the Italian police as an illegal migrant. He came to Australia at the age of 18. For the first few months he lived in a hostel but was then thrown out on the streets. He could not speak English, was not aware that he could apply for unemployment benefit and was, therefore, initially destitute without money or somewhere to live. As a result he got into trouble.
Mr Mezbur said he did not dispute his criminal history, but the Tribunal should take into account his circumstances at the time he first became involved in committing criminal acts. He said he has now paid his debt in prison, he is no longer naïve and stupid as he was at the age of 18 and, after being in Australia for 20 years, Australia is his home and he is no longer a threat to the Australian community. He is older and has no intention of committing another offence. Mr Mezbur said the most recent conviction for having goods in custody suspected of being stolen and received, on 13 January 2000, was for an offence that he did not commit. He picked up a wallet outside a pharmacy and was in the course of taking it to a police station when he was stopped by police. They refused to believe his explanation.
In the previous Tribunal proceedings, Mr Mezbur said his father had died when he was about 5 years old. In these proceedings, he told the Tribunal that his mother had died in about 1993/1994 and his younger sister had been killed in the war in Bosnia. His older sister, Mira, still lives in Italy, but he has very little contact with her. He has an aunt in Sarajevo with whom he was in contact on a fairly regular basis until about 14 months ago but when he last tried to phone her, he was not able to get through. He also has a cousin in Sarajevo who is married with a family, and two friends with whom he grew up who are now married with children and with whom he last spoke 2 to 3 years ago. He would like to visit them but they would be unable to provide him with accommodation. Mr Mezbur said that if the deportation order is set aside and he is able to get a return visa to Australia, he would like to visit Bosnia for several months to see what the situation there is like now and to see his parent's graves. He still has some fear for his life because he is half Serb and half Muslim. Because his first name Asim is a Muslim name, his Muslim background will be immediately recognisable. The Serbs and the Muslims are still fighting each other in Bosnia and he will always have to watch his back. When he last spoke to his aunty in Sarajevo, she told him not to come back because otherwise there would be trouble.
Mr Mezbur said he met Ms Akeljic through her brother. She came to visit him in prison and, after he came out of prison, in about 1989, they started living together. At that stage, she had divorced her husband and was supporting her two children. Mr Mezbur said that he treated her two children as his own. He spoke of his love for his son, Alan. He wants to see him growing up, although he has not seen him for the past 2 ½ years while he has been in prison. He did not want Alan to see him in prison because of his own memories of his father being in prison and of his being taken to see him.
Mr Mezbur said he used to take his son everywhere with him when he was small, even on a trip from Sydney to Perth in the semi-trailer he was driving when Alan was about 8 months old. He also recalled how on one occasion he had looked after Alan all night when he had chickenpox. The last time he saw Alan was about 3 years ago when Ms Akeljic and Alan were walking down the other side of the road. He parked his car and walked towards them, calling their names. Alan was frightened and hid behind Ms Akeljic. Mr Mezbur asked whether he could come and collect his son to take him out that weekend, but she said "No." Since Mr Mezbur's relationship with Ms Akeljic finished about 3 years ago, his son is the only real family member he has. His son is the one that he is fighting for. Mr Mezbur said he wants to "to be there for Alan." Remembering how he was affected when his own father was not there for him, if Mr Mezbur is released from prison into the Australian community, he intends to apply to the Family Court so that he can see Alan on a couple of days a week. While Mr Mezbur could remember that Alan was born in Liverpool Hospital, he could not remember his date of birth by reason of the poor memory from which he has suffered since the 1993 motor vehicle accident.
Mr Mezbur recalled how on one occasion when his son was very young, he took him to a Turkish doctor who told Mr Mezbur that his asthma would not improve unless they took him away from the Sydney pollution. Mr Mezbur said he got Ms Akeljic and the children together in the car and they drove to Bombala that night and rented a farm. After a couple of months Alan was cured, and because Mr Mezbur could not tolerate Ms Akeljic's "nerves" any more, he took his son back to Sydney. In the meanwhile, Ms Akeljic was admitted to hospital for "mental treatment", so clearly there was something wrong. Mr Mezbur said the separation from Ms Akeljic was a bitter one. He was in Windsor Prison when she told him on the phone that she wanted to finish the relationship. Nevertheless, he agreed to this. He said the man with whom Ms Akeljic is now living, her fiance, left his former wife and four children. His former wife phoned Mr Mezbur in prison and asked him to assist her in getting her husband back.
Mr Mezbur said he had always tried to provide for Ms Akeljic and their children and make sure they did not go hungry. However, she always wanted more money. Mr Mezbur said he also often looked after her mother who would contact him in preference to her sons. On one occasion, Ms Akeljic's mother phoned him in the middle of the night to ask him to take her to the hospital even though her sons were asleep in the same house. Mr Mezbur said that when he was running a business called Intercity Management, he also gave one of Ms Akeljic's brothers a job but the brother stole cheques from his office.
Mr Mezbur said he had been injured in a motor vehicle accident in 1993 when he rolled a semi-trailer. He has been in both the Cumberland Hospital and the Royal Prince Alfred Hospital for treatment of his mental condition on a number of occasions. He suffers from deep depression and schizophrenia. The medication which he is currently taking for his nerves is Mellor, 150 mgs, Tegretol, and Dioxin, 200 mgs, which also helps him sleep. In addition, he suffers from back pain. He had back manipulation under anaesthetic in 1985. The back pain does not stop him working the one to two hours a day he currently works. He has trouble lifting things because of the pain. Mr Mezbur also recalled that when he was a child, his mother used to take him to see a psychiatrist.
Mr Mezbur said he still smokes marijuana, even in prison. He used to take speed and, on a few occasions, heroin. He also abused prescription medicines. Currently, he takes Methadone daily under prescription from the prison doctor. Mr Mezbur said that 3 months ago he was taking 150 mg daily. He has now managed to reduce this to 30 mg daily. Mr Mezbur acknowledged that for many years he has had drug problems. He said the drug-related convictions are all in respect of his personal use and he had never supplied drugs. He has not drunk alcohol for over 20 years. This is in part due to his memories of how alcohol killed his father. Both his father and grandfather died from alcohol abuse.

Mr Mezbur denied that he had a gambling problem. He said that he would occasionally go to the TAB, and on one occasion when he and Ms Akeljic were living in Moruya, he won $1,500 on a race which he gave to Ms Akeljic.
Mr Mezbur acknowledged that he has Hepatitis C which he contracted from a woman with whom he was having a relationship, who had used heroin. He was not at that time aware of her history of heroin use.
As soon as the current proceedings are completed, Mr Mezbur intends to do a drug and alcohol course so that he has a better understanding of the drugs which he has used. Because he has been thinking of nothing but the Tribunal hearing for the past 14 months while he has been detained in prison after the completion of his sentence, he has not yet been able to concentrate on undertaking a drug and alcohol course. Mr Mezbur questioned how he will receive treatment for his mental condition and drug addiction if he is returned to Bosnia.
Mr Mezbur said that if he is released, he intends to get a job, probably driving fork lifts, since he has obtained his fork lift driving ticket whilst he has been in prison. He has a few friends in Sydney and Brisbane.
Mr Mezbur recalled that Department of Immigration officers had visited him in prison on one or two occasions, including during the 9 months that he was in Cessnock prison. Before that he had spent time in Long Bay Prison where he said he suffered two strokes. While he was at Cessnock Prison, there were a number of misconduct incidents recorded against him for things like abusive language, which he said, were as a result of a personality clash with the prison officers.
Mr Mezbur could not recall being interviewed by a Department of Immigration officer at Emu Plains Training Centre on 6 May 1983. He said he could not speak very much English then. However, by the time of his second or third prison sentence, he was aware that he would be liable for deportation. He remembered the 1991 Deportation Order and the 1993 Tribunal proceedings and subsequent appeal to the Federal Court. Mr Mezbur said although when he first arrived in Australia in 1981, he could not speak a word of English, over the years he has made an effort to learn English so that his English is now good.
Mr Mezbur said he could not recall the incident on 29 December 1994 following which he was charged with assaulting Ms Akeljic. He said he was under medication at the time. He was taken by the police who came to the house to Cumberland Hospital, and it was from there that they took him to court. Afterwards, Ms Akeljic provided bail for him pending his trial.
Mr Mezbur showed the Tribunal certificates which he has been awarded for various courses he has undertaken while in prison. He said he had also helped other prisoners get off drugs. While he and Ms Akeljic were living in Bombala, he assisted with meals on wheels for a few months. He has now paid his debt in prison, he is no longer a threat to the Australian community, Australia is his home, it is where his son is, and he desperately wants to stay here.

NEVZETA AKELJIC'S EVIDENCE

Ms Akeljic said she undertakes home duties looking after her children and her mother, who suffers from Alzheimer's disease. She lives with her fiance, Mr N Falko, who is a registered plasterer, with whom she has been in a de facto relationship for six years. Mr Falko has a good healthy relationship with her children. He has children of his own by his first marriage. Ms Akeljic's children are Selma, who is aged 18, Jason who is aged 14 and Alan who is Mr Mezbur's son, who is aged nearly 9. Alan has a close relationship with Mr Falko whom he treats as his father because he does not know his biological father. Alan is happy and content, and Ms Aklejic said she does not want him to have any contact with Mr Mezbur. She said when Alan is 18 he can make his own choice. Alan also has a good relationship with Selma and Jason. Alan is a bright student in Year 3 at school. He is one of the best students in his class and reads very well. He is happy and well, apart from suffering from mild asthma. When he is sick she takes him to the hospital.
Ms Akeljic says she last saw Mr Mezbur about six and a half years ago in Liverpool Shopping Centre, in 1995, when he called out "Alan, Alan" and walked across the road yelling "I'm your father". She crossed the road to meet him. Alan, who was with her at this time, was frightened and cried and hid behind her because he did not know this man. Mr Mezbur followed them, yelling and screaming and shouting abusively. When she said that she did not want Mr Mezbur to take Alan out for the weekend and walked away, Mr Mezbur started swearing and threatening her.
Ms Akeljic said that Mr Mezbur has never phoned his son. He provides nothing by way of financial support. She and Mr Falko provide for all Alan's needs. Ms Akeljic said she first met Mr Mezbur in about 1988 and they lived together from 1989 to 1994. However, he was in prison quite a lot of the time, including when she gave birth to Alan. Their time together included a period when they lived in Moruya when Mr Mezbur was driving semi-trailers. Ms Akeljic ended the relationship in 1994 when he went to prison. This was after the incident when he threatened and abused her and tried to ram a 4-wheel drive through the front of the house. The night before, he had gone upstairs to the bathroom in the townhouse where they lived, and a little later came downstairs again having cut his wrists. He then sat in a chair dripping blood everywhere. Eventually, she persuaded him to let the ambulance come and the ambulance officers dressed his wounds. The next morning, she told him that wanted to end the relationship. He said "No way" and started threatening her. Shortly after, he came back into the house with a petrol can and said that if she ever left him, he would blow them all up. Selma then went upstairs and climbed out of a back window on to the top of the garage and went into the neighbour's house from where the police were called. When the police came, he jumped the back fence to try and get away, but they dragged him back and took him away in a paddy wagon.
Ms Aklejic acknowledged that Mr Mezbur's relationship with his son, when he was actually there for a short time, was a nice loving relationship, but it did not last long. Generally, Mr Mezbur has done nothing for Alan and has caused her grief and heartache. There were a lot of occasions when the family missed out because Mr Mezbur took money out of their bank account and spent it on gambling. He worked when it suited him. He also drank. When they lived in Moruya and Mr Mezbur was driving semi-trailers, he was constantly out "doctor shopping" in order to obtain prescription medication.
Mr Akeljic said Alan had developed asthma at about the age of 6 months. They took him to Westmead Hospital. On their doctor's advice, they left Sydney and went to Bombala where they lived for a short time. After a while there, Mr Mezbur took Alan back to Sydney by himself for a whole week. Ms Akeljic acknowledged that she had a nervous breakdown because of Mr Mezbur.
Mr Akeljic acknowledged that, to begin with, Mr Mezbur had a good relationship with her mother. However, towards the end, he stole jewellery from both Ms Akeljic and her mother and also her mother's medication. He also kept from Ms Akeljic that he was on Methadone.
Ms Akeljic said on the occasion that Mr Mezbur took Alan with him to Perth, she went with him. She could not recall one of her brothers stealing cheques from Mr Mezbur's business, nor Mr Mezbur working after the business failed for lack of work. She often did not know where the money was coming from and Mr Mezbur would even, on occasion, use her social security benefits and spend that money on alcohol, drugs and gambling.
RESPONDENT'S SUBMISSIONS
Mr Cureton, for the Respondent, referred the Tribunal to the primary considerations set out in Direction No. 9. Firstly, with regard to the expectations of the Australian community, there are two aspects to community expectations noted in the Direction:
(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who currently commit/are convicted of crimes that are abhorrent to the Australian Community will be removed from Australia.

Three factors are stated as relevant to an assessment of the level of risk to the Community and the need for its protection:

(a) the seriousness and nature of the crime;
(b) the risk of recidivism
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

Mr Cureton pointed out that Mr Mezbur has committed a number of serious offences such as those included in the examples in paragraph 11 of the Direction. For example, on 7 February 1983, the Applicant was convicted of attempted arson for which he received a sentence of 2 years imprisonment. The length of the sentence indicates the seriousness with which the Court viewed Mr Mezbur's crime. A further example is Mr Mezbur's conviction, on 14 August 1987, of break, enter and steal and other offences for which he received a total of 4 years imprisonment. The drug offence convictions on 29 December 1994 are also regarded as serious in accordance with paragraph 11(a) of the Direction.
With regard to the risk of recidivism, Mr Cureton contended that there is a high risk that Mr Mezbur will re-offend when one considers his criminal history. Mr Cureton noted that Mr Mezbur has not yet adequately addressed his drug problem despite the opportunity to undertake a drug and alcohol course in prison. His drug problem has been one of the main causes of his re-offending. His risk of re-offending is also heightened by his mental health problems. Mr Cureton said that Deputy President McMahon, in making his decision in 1993, found there was a high risk of Mr Mezbur re-offending and he was proved correct.
Mr Cureton said that Mr Mezbur's most recent conviction was on 13 January 2000, for having goods in his custody suspected of being stolen and received. He argued, therefore, that the intervening period was insufficient to establish that there is not still a high risk of Mr Mezbur re-offending.
Mr Cureton said that Mr Mezbur has re-offended notwithstanding that he must have been made aware on a number of occasions that he was liable to deportation. There is documentary evidence to show that he was warned of this in an interview on 6 May 1983 (T2, p11) and on 21 March 1988 (T17, p39). Then the first Deportation Order against him was made on 19 December 1991 which was affirmed after a review by the Tribunal. Mr Cureton noted that at the Tribunal hearing, Mr Mezbur made promises to the Tribunal that he would not re-offend. Notwithstanding this, on 29 December 1994, Mr Mezbur committed the offences of assault occasioning actual bodily harm and assaulting police (T74, p181).
Mr Cureton submitted that a clear message should be sent to others in the community that such conduct will not be tolerated, in order to deter the commission of similar offences.
Secondly, the other primary consideration to which the Tribunal should have regard is the best interests of any child of the potential deportee. The Direction states that the decision-maker must determine the best interests of any children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee.
18. It is the Government's view that, in general, the starting point for any consideration of the best interests of the child would be that the child's best interests will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the potential deportee, include, but ate not limited to:
any evidence that the potential deportee has abused or neglected the child in any way, including physical, sexual and/or mental abuse; or
any evidence that the child has suffered or experienced any physical or emotional trauma arising from the potential deportee's unlawful conduct.
Decision-makers should have due regard to the Government's view in this respect.
It is the Government's view that when considering what are the best interests of the child or children, regard should be had to:
the nature of the relationship to potential deportee;
whether the child is an Australian citizen or permanent resident (13);
the likely effect that any separation from the potential deportee would have on the child or children;
the likely effect on the child or children of leaving Australia if the parents decided to take the child or children with them from Australia; and
the impact of the potential deportee's prior conduct on the child.
Decision-makers should have due regard to the Government's view in this respect.
It is the Government's view that considerations which aid in assessing the above factors include:
the age of the child;
the time that the child has spent in Australia;
any language barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children acquire new language;
any cultural barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances;
any medical problems of the child and the likely access to relevant facilities in the likely country of future residence;
the child's degree of emotional and psychological dependence on the potential deportee; and
the amount of time that the potential deportee has actually spent with the child.

Decision-makers should have due regard to the Government's view in this respect.

Mr Cureton said that because of the long gap in any relationship between Mr Mezbur and his son, Alan Mezbur, who is now aged 9, any relationship between them is purely speculative. Mr Cureton submitted that Alan is in stable parent/child relationship with Ms Akeljic's fiance, Mr Falko. Alan is well looked after by his mother and Mr Falko, who financially support him without any contribution from Mr Mezbur who has not seen his son since early 1995, and has not attempted to make any contact. Because of the volatile relationship between Mr Mezbur and Ms Akeljic, it may be in Alan's best interests to maintain the status quo. Mr Cureton pointed to the last two contacts between Mr Mezbur and Ms Akeljic. In early 1995, the brief meeting in Liverpool High Street led to a shouting match. In December 1994, Mr Mezbur's relationship with Ms Akeljic ended following his having assaulted her. Mr Cureton submitted that the best interests of Alan Mezbur were outweighed in this particular case by the need to protect the Australian community because of the seriousness of Mr Mezbur's misconduct.
With regard to the other considerations to which the Tribunal should have regard, Direction No. 9 states 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 and given less weight than the primary considerations. They include the degree of hardship which may be suffered by the potential deportee and the degree of hardship to any Australian citizen or permanent resident, including the potential deportee's family, other than children whose interests are a primary consideration.
Mr Cureton said that the Respondent concedes that the deportation of Mr Mezbur will cause him hardship, in particular, because he has not addressed his drug problem and because of his on-going mental health problems and his suffering from Hepatitis C. Mr Cureton noted that he has some family and friends in Sarajevo whereas, apart from his son, he has no family in Australia and no strong network of friends. Mr Cureton submitted that the hardship caused to Mr Mezbur by his deportation is outweighed by the need to protect the Australian community.
With regard to Australia's international obligations, Mr Cureton said the Respondent's assessment was that Mr Mezbur is not owed protection obligations under the relevant United National Conventions (T74, p186). In particular, Mr Mezbur is no longer regarded as a refugee. Mr Cureton said Mr Mezbur's contention that he feared that if he returned to Bosnia he might be killed because of his being half Muslim, should not be believed. Mr Cureton noted that Mr Mezbur had told the Tribunal that he wants to go back to Bosnia for a few months if he is able to obtain a return visa. There is no evidence to support his fear. Mr Mezbur has not been in Bosnia for 20 years and any discrimination which he may have experienced in the past is not of a sufficient level to constitute persecution under the Refugees Convention.
Mr Cureton said that the Amnesty International Report 2001 for Bosnia – Herzegovina (R2) indicates that the UN High Commissioner for Refugees is returning people to Bosnia. The US State Department Report dated 9 September (R1), indicates that the Government of Bosnia is working towards a durable peace and reconciliation between the different and religious groups.
THE APPLICANT'S SUBMISSIONS
Mr Mezbur submitted that the offences which he had committed were not of such a serious nature as to warrant his deportation. Mr Mezbur noted that he had not been convicted of any serious offences for some years. He said when considering his conviction for attempted arson, it should be noted that he had decided not to go ahead with the arson and was leaving the premises when he was arrested by the police. Also, the drug offences of which he had been convicted were in relation to his own personal use and consumption only. A number of the offences were committed under the influence of drugs, and for example, he does not recall the assault on Ms Akeljic in December 1994. Mr Mezbur said the most recent offence of which he had been convicted was one that he did not commit. He had merely picked up a wallet outside a pharmacy in Oxford Street and was taking this to the police station. However, because of his record, he was not believed.
Mr Mezbur said there was no risk of recidivism. He is now nearly 40, he does not intend committing criminal offences again and certainly does not want to risk being imprisoned again. He is now a mature man and will not do anything stupid.
Mr Mezbur said he acknowledges his criminal record and is now sorry for it. He is not claiming that he is perfect, but he has contributed to the Australian community by, for example, employing people in his business and in assisting with meals on wheels when he was living in Bombala. Mr Mezbur asked that he be given a chance to prove himself. He said his life is in Australia and he wants to be here for his son in the way that his own father was not there for him. He has now been in Australia for over 20 years and has few family and friends in Bosnia and nowhere to live there.
Mr Mezbur said he always provided for his family and made sure they had food to eat. Even when he closed his business, Intercity Management, he went back to driving semi-trailers interstate in order to provide for them. His main focus now is on spending time with his son and, when he is released, he intends to apply to the Family Court to obtain visiting rights. He wants to give his son the kind of guidance that he never had. If he is deported, what can he tell his son when he is 18 years old? He has not made contact with his son recently because he did not want his son to see him in prison. When he was living with his son, he did everything he could for him and they had a close relationship.
Mr Mezbur said if he is returned to Bosnia, he fears for his life because he is half Muslim. Also, his health has now deteriorated: he has a bad back, he suffers from schizophrenia and depression, from Hepatitis C, and is still taking Methadone. How would he support himself in Bosnia? He has nowhere to go there and has no immediate family apart from an aunt and a cousin with whom he has had no contact for 14 months. Mr Mezbur commented on the US State Department Report dated 9 September 1999 (R1), noting that the Report's estimates as to the ethnic and religious groups in Bosnia were largely supposition because there has been no census since 1991. He said, in particular, there is no identifiable group who are Bosniak since this includes Serbs, Muslims and Bosnians. Mr Mezbur noted that the Report indicates that minority religious groups are still being discriminated against. There is specific mention of the difficulties facing Islamic communities including the blocking of the reconstruction of mosques or other Islamic community owned buildings destroyed during the war. There is also mention of Serb parties being openly opposed to accommodating to a multi-ethnic population. There is mention of on-going mutual suspicion among members of all three major religious groups and of violence and vandalism in relation to religious worship and religious sites. The Report states:
Instances of discrimination exist in Sarajevo, especially in the areas of housing and support for return of minority refugees and displaced persons.

Mr Mezbur concluded that if he is returned to Bosnia-Herzegovina, he anticipates significant difficulties, as a result of these on-going ethnic and religious tensions.
APPLICATION OF THE LAW AND FINDINGS
There is no dispute that Mr Mezbur is liable to deportation under s 201 of the Act. The question is whether the discretion should be exercised to deport Mr Mezbur. Like other decision-makers, the Tribunal is guided by Direction No. 9 in exercising this discretion. The two primary considerations to be considered in making a decision are set out in paragraph 6:
(a) The expectations of the Australian community; and
(b) in all cases involving a parental relationship between a child or children and the potential deportee the best interests of the child or children.
There are two aspects to community expectations noted in paragraph 8 of the Direction:
(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who currently commit/are convicted of crimes that are abhorrent to the Australian Community will be removed from Australia.
Paragraph 10 identifies three factors as relevant to an assessment of the level of risk to the community and the need for its protection:
(a) the seriousness and nature of the crime;
(b) the risk of recidivism;
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

In addition to the primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases. Paragraph 21 states that "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 reasonably be expected to 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.

First, with regard to the expectations of the Australian community, the Tribunal considered the seriousness and nature of the crimes committed by Mr Mezbur. The Tribunal notes that his criminal record is an extensive one ranging over a period of 17 years. This record includes attempted arson, breaking entering and stealing, obtaining financial advantage by a false or misleading statement, attempting to obtain an advantage by deception, receiving stolen property, using a false instrument, assault occasioning actual bodily harm, assaulting police, supplying with a prohibited drug, and obtaining a benefit by deception.
The Tribunal notes that among the examples of offences considered by the Government to be very serious, stated in paragraph 11 of the Direction, are included the trafficking of drugs, assault or other form of violence against persons, and serious thefts. In the Tribunal's opinion, attempted arson is of a similar degree of seriousness. The Tribunal therefore finds a number of the offences committed by Mr Mezbur can be characterised as very serious offences. Paragraph 12 of Direction No. 9 states that the sentenced imposed for a crime is also an indicator of the seriousness of the offence. Mr Mezbur has been sentenced to a number of lengthy periods of imprisonment.
With regard to the risk of recidivism, the Tribunal notes the comment by Deputy President McMahon in the previous proceedings in 1993 when he said (Supplementary T Documents 7, para 17):
In my view, the likelihood of the Applicant re-offending in the future must be rated as very high indeed.

Deputy President McMahon has been proved right. Mr Mezbur has committed a number of criminal offences since 1993, some of them serious. The last offence for which he was convicted is that of having goods in his custody suspected of being stolen and received, for which he was convicted on 13 January 2000. Mr Mezbur, whilst acknowledging that he had committed the other criminal offences on his record, stated that he was not guilty of this particular offence, having found a wallet outside a pharmacy in Oxford Street and being in the course of taking this to a police station. Despite Mr Mezbur's assurances that he will not commit other criminal offences if he is released from prison, in the Tribunal's view there is a high risk of his re-offending, particularly, in the light of his continuing drug addition. He is currently receiving Methadone on a daily basis. Whilst Mr Mezbur's evidence is that his Methadone dosage has recently been reduced, and he assured the Tribunal that he will undertake a drug and alcohol rehabilitation program as soon as possible, his past criminal history does not give rise to any optimism that he will not re-offend. If Mr Mezbur is not deported and is released from prison, he has said that he will apply to the Family Court for visiting rights in respect of his son. Given the volatile relationship with his ex de facto, Ms Akeljic, and her strong opposition to Mr Mezbur having any contact with his son, the Tribunal anticipates there could be a bitter dispute over Mr Mezbur's access. This is likely to exacerbate Mr Mezbur's difficulties over the immediate period.
With regard to deterrence the Tribunal recognises that the deportation of Mr Mezbur may discourage or deter others from becoming engaged in similar criminal activity.
Finally, when considering the expectations of the Australian community, paragraph 15 of Direction No. 9 sets out the Government's view that "the Australian community trusts non-citizen residents to obey Australian laws" and that it may be appropriate to deport a person who betrays this trust. The Tribunal notes that Mr Mezbur has been warned by Departmental officers that he is liable to deportation on a number of occasions and that the previous Deportation Order made on 19 December 1991 was not carried out only because of the difficulty of returning Mr Mezbur to Bosnia-Herzegovina in 1995, due the on-going conflict in the Balkans.
The second primary consideration to which the Tribunal must have regard is the best interests of Mr Mezbur's child. The Direction states that the decision-maker must determine the best interests of any children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee. Mr Mezbur has one child, Alan, who is 9 years of age. The Tribunal relies on his mother, Ms Akeljic's evidence that he is a bright boy, who is happy and doing well both at home and at school and has a good relationship both with his half-brother and half-sister and Ms Akeljic's fiance. The Tribunal accepts Ms Akeljic's evidence, which Mr Mezbur did not dispute, that Mr Mezbur last saw Alan early in 1995. He has made no attempt to contact Alan since that time, justifying this, in part, with the explanation that he did not want his son to see him in prison as he had seen his own father. Mr Mezbur has not lived in the same household as his son since he was arrested by the police having assaulted Ms Akeljic on 19 December 1994. Mr Mezbur has also not provided any financial support for his son during the intervening period.
While Ms Akeljic recognised that Mr Mezbur had a good and loving relationship with his son when he last lived in the same household, this was six years and nine months ago, when Alan was aged 2. Ms Akeljic stated, and the Tribunal accepts, that Alan has no memory of his biological father and that he regards Mr Falko, who has been living in a de facto relationship with Ms Akeljic for the past six years, as his father.
Mr Mezbur's evidence suggests that his separation from his son may well be more damaging for Mr Mezbur than for his son. The Tribunal accepts that Alan may wish to establish contact with his father in the future, but, in the Tribunal's view, for the present, the best interests of Alan in retaining the possibility of access to his father, are outweighed by the expectations of the Australian community.
Thirdly, with regard to the other considerations which the Tribunal must take into account, the only relevant consideration under this heading is the degree of hardship which may be suffered by Mr Mezbur if he is deported.
Mr Mezbur first arrived in Australia on 7 July 1981, having spent the previous four years in Italy and having left Sarajevo when he was 14 years of age. He has now lived here in Australia for over 20 years. His parents and younger sister who lived in Sarajevo are now dead and his only immediate family is his older sister in Italy with whom he has had no contact for a while. Mr Mezbur has an aunt and a cousin in Bosnia and mentioned two school friends with whom he has maintained some contact over the years. However, none of these persons can be expected to provide a home for him if he is deported to Sarajevo.
The Tribunal finds that Mr Mezbur has no family other than his son in Australia. He says he has friends in Sydney and Brisbane, but there was no evidence of any strong social ties.
The Tribunal finds Mr Mezbur suffers from mental health problems, including, possibly, schizophrenia and depression, from Hepatitis C, and he is still Methadone dependent. He also suffers from back pain which may limit his ability to undertake extensive manual labour. The Tribunal accepts that returning Mr Mezbur to Bosnia- Herzegovina may pose risks for his mental and physical condition. Bosnia- Herzegovina is a country which has been severely affected by conflict over some years and, whilst it appears that the political situation seems to be slowly stabilizing, it is likely that there will be continuing religious and ethnic conflict. Like his father, Mr Mezbur is Muslim although his mother was a Serb. This may pose particular problems if he returns to areas where there is on-going discrimination against a Muslim minority. The Tribunal recognises that he may also have difficulty in obtaining employment after many years of absence.
The Tribunal is aware that Mr Mezbur was considered a refugee when he first entered Australia on 7 July 1981. It was because of the on-going conflict in Bosnia in 1995, that the Respondent agreed to revoke the Deportation Order of 19 December 1991 (Supplementary T Documents, p1 and p 5). In a Departmental Minute dated 20 September 1999 (T74, p186), the Respondent states, that, on 28 September 1995, Mr Mezbur was given a warning:
That any further criminal convictions would lead to the question of his deportation being reconsidered and the practicability of returning him to Bosnia being re-examined.

The Tribunal notes that there is no other evidence of this warning, but considers it must have been clear to Mr Mezbur following the revocation of the Deportation Order of 19 December 1991, that if he were convicted of further criminal offences, the question of his deportation would be reconsidered.
In the Departmental Minute dated 20 September 1999 (Tp186), the Respondent considered whether Australia continued to owe protection obligations to Mr Mezbur under the terms of the Refugees Convention. The Minute concluded:
Country information indicates Mr Mezbur's life and/or freedom will not be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion upon his return to Bosnia. Therefore, we advise that Australia does not owe protection obligations to Mr Mezbur and it would not be in breach of its international obligations under the Refugees Convention.
It is further assessed that if returned Mr Mezbur would not be subject to violation of his civil and political rights under the ICCPR [the International Covenant on Civil and Political Rights] and that he would not be subject to torture and therefore he does not come within the terms of the CAT [the Convention Against Torture].

The Tribunal notes the country information provided at the hearing. The US State Department Report of 9 September 1999 (R1) and the Amnesty International Report for 2001 (R2), covering the period January to December 2000, suggests that although the situation in Bosnia-Herzegovina is gradually stabilising, and returns of displaced persons are occurring, nevertheless, there appears to be on-going discrimination against religious and ethnic minorities including those who are Muslim.
Article 33(1) of the Refugees Convention states:
"No contracting party shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom will be threatened on account of race, religion, nationality, membership of a particular social group or political opinion."

While the Tribunal recognises that if Mr Mezbur is deported to Bosnia-Herzegovina, he may be subject to discrimination because of his Muslim background, there is no evidence that this will threaten his life or freedom. The Tribunal also notes Mr Mezbur's stated intention of visiting Bosnia-Herzegovina for approximately 2 months, if he is able to obtain a return visa to Australia, because he wishes to visit his parents' graves and see friends from his school days. While Mr Mezbur stated that he feared for his life because of his Muslim background if he returned to Bosnia-Herzegovina, this does not accord with his wish to visit the country voluntarily for a period of 2 months.
Thus, the Tribunal, on the basis of the evidence before it, is not satisfied that returning Mr Mezbur to Bosnia-Herzegovina would breach Australia's international obligations: it appears that the principal risk to Mr Mezbur is one of discrimination. Weighing up the primary and other considerations, in the Tribunal's view greatest weight should be given to the expectations of the Australian community which outweigh the best interests of Mr Mezbur's son, Alan, and the hardship which Mr Mezbur will suffer on being returned to Bosnia-Herzegovina. Thus, the decision under review should be affirmed.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  20 & 21 September 2001
Date of Decision  26 October 2001
Representative for the Applicant   Self-represented
Solicitor for the Respondent    Mr N Cureton, Blake Dawson Waldron