Minister for Immigration and Multicultural Affairs v Serevi

[2000] FCA 1691

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v SERU SEREVI

N 1438 OF 1999

JUDGE:         WHITLAM J
DATE:           22 NOVEMBER 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1438 OF 1999

On appeal from the General Administrative Division of the Administrative
Appeals Tribunal constituted by Deputy President Chappell

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:	SERU SEREVI (also known as EDWARD TURAGA) RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	22 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1438 OF 1999

On appeal from the General Administrative Division of the Administrative
Appeals Tribunal constituted by Deputy President Chappell

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:	SERU SEREVI (also known as EDWARD TURAGA) RESPONDENT

JUDGE:	WHITLAM J
DATE:	22 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 17 March 1995 two indictments were filed against the respondent in the District Court of New South Wales.  One indictment charged that on 22 October 1994 he committed offences of demanding money with menaces and of assault occasioning actual bodily harm.  The other indictment charged that on 31 December 1994 he committed offences of attempting to steal from the person and of malicious wounding.  The respondent pleaded guilty to these counts, and his pleas were accepted by the Crown in full satisfaction of the indictments.  On 27 April 1995 he was convicted of those offences and he asked to have taken into account in passing sentence on him for the offence of demanding money with menaces two offences of assault also committed on 22 October 1994.  Concurrent terms of imprisonment were imposed.  Mitchelmore DCJ sentenced the respondent, in respect of the assault occasioning actual bodily harm offence, to a fixed term of one year commencing on 31 December 1994.  In respect of the other offences, his Honour sentenced him to a minimum term of four years and six months commencing on the same date and specified an additional term of two years commencing on 1 July 1999. 

2. The respondent is Fijian national who had been in Australia for less than ten years when those offences were committed. In that situation and in the light of the convictions and sentences, on 28 September 1998, a delegate of the applicant (“the Minister”) made an order under s 200 of the Migration Act 1958 (“the Act”) that the respondent be deported from Australia. On 27 October 1998 the respondent filed an application for review by the Administrative Appeals Tribunal (“the Tribunal”) of the decision to make the deportation order. On 19 November 1999 the Tribunal set aside the decision under review and directed that the respondent not be deported. This is an appeal from the Tribunal’s decision.

3. The grounds of appeal pressed by counsel for the Minister are:

   “1.The Tribunal erred in law by considering evidence that the Respondent had chronic schizophrenia at the time he committed the deportable offences, because this was contrary to the evidence before the sentencing judge and thereby impugned the sentence.

   2. The Tribunal erred in law by making findings inconsistent with the basis upon which the sentencing judge imposed the sentence that satisfied the requirements of s. 201(c) of the Act.”

4. The power of the Minister to order the deportation of the respondent was enlivened because he was convicted of an offence required by s 201(c) of the Act to be “. . . an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year.”

5. The remarks of the sentencing judge, Mitchelmore DCJ, were included in the so-called “T” documents.  However, the only part of the evidence before the sentencing judge also received in evidence by the Tribunal was a forensic psychiatrist’s report tendered by the respondent on the first day of the Tribunal hearing.  That was a report by Dr Bruce Westmore dated 10 April 1995. 

6. The Tribunal’s statement of reasons comprises some forty-five pages. They are a model of clarity. The Tribunal dealt, in turn, with the background to the proceeding before it, the Act and the Policy Direction under s 499 of the Act, the evidence of factors listed in the Policy Direction, the submissions of the parties’ representatives and, finally, its own views. The error alleged by the Minister is said to be revealed in the Tribunal’s findings on the seriousness and nature of the offences rendering the respondent liable to deportation and on the risk of recidivism

7. Prior to expressing its views on the first of those matters, the Tribunal noted [91] that the seriousness of those offences was reflected in the sentences imposed.  Speaking of the respondent’s total criminal history, the Tribunal said:

   “94.     In the Tribunal’s view the evidence which has been received in the present case in regard to Mr Turaga’s mental illness can and should be considered by it in making its own assessment of the seriousness of the conduct which led to Mr Turaga’s convictions, not only for the deportable offences, but also for the more recent assaults committed during his prison term …”

   It then stated its findings as follows:

   “95.     On the basis of the evidence before it, the Tribunal is satisfied that at the time of sentencing Mr Turaga in regard to the deportable offences Mitchelmore J did not have a full appreciation of the nature and extent of Mr Turaga’s mental illness. While Mitchelmore J did have the benefit of Dr Westmore’s report and that of Ms Kelly, a social worker, which referred to certain mental health issues, neither of those professionals was aware that prior to the preparation of their reports about Mr Turaga, he had already been diagnosed by a psychiatrist in the correctional system as suffering from chronic schizophrenia, and was receiving medication for this illness. On this point, and on all other aspects of the status of Mr Turaga’s mental condition, the Tribunal accepts the detailed evidence presented by Dr Mastroianni. The Tribunal found Dr Mastroianni to be a highly credible witness who had the opportunity not only to examine the medical records kept by correctional authorities in regard to Mr Turaga but also to observe him over a considerable period of time while he was undergoing therapy in the psychiatric clinic at Long Bay operated by Dr Mastroianni. Among other things, Dr Mastroianni provided a very convincing explanation as to why Dr Westmore had not diagnosed Mr Turaga as suffering from chronic schizophrenia when he examined him in April 1995. At the time of that examination Mr Turaga was, said Dr Mastroianni, medicated and behaving in a way which masked his underlying symptomatology.

   96.      Dr Mastroianni indicated that when accepting medication Mr Turaga was not aggressive, but rather shy, isolated and withdrawn in his behaviour. However, as the two offences committed in prison indicated, during periods of non-compliance with medication, Mr Turaga’s psychiatric symptoms would re-emerge and his paranoid perceptions could result in him becoming violent. It should be noted that there was no evidence before the Tribunal which suggested that at the time that Mr Turaga was found guilty of the two assaults within the correctional system, the convicting magistrate’s court was made aware of his mental illness, or of the fact that at the time of the commission of the offences he was not taking his prescribed medication.

   97.       It is not very helpful to speculate at this point as to whether or not, if he had had the psychiatric evidence which is now available to the Tribunal, Mitchelmore J, as well as the magistrate involved in the subsequent convictions, would have reached a different view about the gravity of the offences and the sentence that was appropriate in the circumstances. With hindsight it is now possible to see that the aggression displayed by Mr Turaga during the offences he committed in October and December 1994, as well as in prison in 1996 and 1997, formed part of a behavioural pattern which was closely related to his mental illness, and to an exacerbation of this illness by the use of alcohol and other drugs. The offences were clearly ones which inflicted both physical and psychological injury upon the victims, but they were also offences which were inextricably linked to the delusionary and paranoid world in which Mr Turaga lived as a result of his mental illness.”

   On recidivism, the Tribunal said:

   98.       Turning to the issue of the risk of recidivism and the associated prospects of rehabilitation, Dr Mastroianni made it quite apparent that in his professional opinion ‘Mr Turaga has a low risk of recidivism if he remains abstinent from alcohol and marijuana and his schizophrenic illness is appropriately medicated.’  (A1:7).  This view was not inconsistent with that reached by the two psychologists, who also provided an assessment of Mr Turaga, and whose written report and evidence has been reviewed earlier.  In their report the psychologists observed that in order to reduce the risk of reoffending by Mr Turaga several factors needed to be addressed including ‘firstly, appropriate psychiatric management strategies’ which should be put in place to stabilise his mental illness, and secondly, the implementation of appropriate counselling to deal with Mr Turaga’s drug and alcohol problems.

   99.      As noted earlier, Ms Carrington in the course of her submissions on the issue of recidivism, contended that there were just too many ‘ifs’ in relation to Mr Turaga’s situation should he be allowed to remain in the Australian community.  However, the Tribunal was impressed by the detailed account given by Dr Mastroianni of the way in which he perceived Mr Turaga would be able to be treated in Australia by accessing the various health services now put in place to allow persons like Mr Turaga to experience relatively normal lives rather than, as in the past, being held in protective custody in mental hospitals and similar institutions.  Dr Mastroianni also indicated that it would be possible to arrange for Mr Turaga to receive an injected medication which would last for a period of two weeks, obviating the need for the daily doses of drugs that were now being administered in the far more structured setting of a prison.”

   It expressed its conclusion in these terms:

   105.     The Policy Direction mandates the Tribunal to balance a number of important factors in reaching a decision whether or not to deport a non-citizen like Mr Turaga.  As a primary consideration the Tribunal is obliged to take account of the Australian community’s expectation that it will be protected from the actions of criminals, and that those who represent an unacceptable level of risk to the community will be removed from it.  The respondent contended that Mr Turaga does represent such an unacceptable level of risk, as he is potentially violent ‘loose cannon’.

   106.     After careful evaluation of all of the evidence, and especially that of Dr Mastroianni, the Tribunal does not accept this assessment of the level of risk proffered by the respondent.  With the assistance of the treatment and support networks that are available to him in this country the Tribunal believes that Mr Turaga’s long term prognosis is quite good, and that he does not present the type of threat which would justify his deportation to Fiji.  Such deportation would not only impose significant personal hardship upon Mr Turaga, and his adoptive parents, but would also lead almost inevitably to a deterioration in his mental state and in an exacerbation of his propensity to act in a violent manner.

   107.     The safety and security of the Australian community is further guaranteed by the fact that Mr Turaga still has to serve almost two years on parole in order to complete his existing sentence.  This extended period of parole supervision offers the opportunity to arrange for a structured rehabilitation program for Mr Turaga.  If Mr Turaga does reoffend during this period, or breach the conditions of his parole, he and his adoptive parents must realise that the opportunities he will have to be rehabilitated with the resources available to him in this country will be forfeited and he will face all but certain and immediate expulsion.

   108.     For these reasons the Tribunal sets aside the decision under review and remits it to the respondent with the direction that the applicant not be deported.

8. Counsel for the Minister submits that the Tribunal impermissibly reviewed the facts found by the sentencing judge.  The Tribunal’s acceptance of Dr Mastroianni’s evidence is said, in effect, to repudiate the judge’s view about the significance of the respondent’s mental condition.

9. That submission, in my opinion, completely misconceives the different tasks undertaken by the sentencing judge and the Tribunal.  It also fails to acknowledge the way in which each party presented his case before the Tribunal.  The “T” documents show the way in which the question of the respondent’s mental condition emerged in the present case.

10. The respondent was warned by letter dated 19 January 1996 that he may be liable to deportation on account of the sentences imposed by Mitchelmore DCJ.  A visiting psychiatrist at Parklea Gaol, Dr R F Barr, wrote in response on 21 March 1996, indicating that the respondent had a schizophrenic illness for which he was receiving treatment, that he would need further psychiatric treatment upon his release, and that deportation may be decided against on humanitarian grounds.  An officer from the Minister’s Department interviewed the respondent at Bathurst Prison on 24 March 1998.  Subsequently that officer received a report from the Probation and Parole Service indicating that, since his incarceration, the respondent had been receiving major psychotropic medication.  This prompted the same officer to write on 16 July 1998 to the Fiji High Commission in Canberra, inquiring whether the respondent’s paranoid schizophrenia was “treatable in Fiji”.  The High Commissioner replied that the Ministry of Health in his country does have facilities to manage patients suffering from paranoid schizophrenia.  All these matters were referred to in the officer’s recommendation of 25 August 1998, with which the Minister’s delegate concurred on 28 September 1998.  (That recommendation also referred to the respondent’s “propensity for violence” as “a significant factor for consideration in this case”, although that was not a finding by the sentencing judge.)  A statement of reasons subsequently produced by the delegate on 6 January 1999 clearly accepted that the respondent suffered from serious mental illness.

11. The course of the hearing in the Tribunal, (which extended over two successive weeks) is also instructive.  The report of Dr Tony Mastroianni, the consultant forensic psychiatrist, is dated 23 July 1999.  Presumably it was served on the Minister soon after that date.  In that report he refers to the fact that he has not read the report of Dr Westmore mentioned in the sentencing judge’s remarks on 27 April 1995.  Dr Westmore’s report was tendered in the respondent’s case on 3 August 1999, the first day of the Tribunal hearing.  Dr Mastroianni’s evidence was taken by telephone on 5 August 1999.  In examination-in-chief, he was asked questions, without objection, about Dr Westmore’s report.  However, he was asked none in cross-examination, although the Minister’s representative suggested that a copy of Dr Mastroianni’s report be forwarded to the prison psychologist who was to give evidence in the following week.  When that psychologist gave evidence by telephone on 13 August 1999, she had not read Dr Mastroianni’s report but the Minister’s representative still asked her questions about it.

12. Finally, I should note that the Minister tendered in his case before the Tribunal a letter from the Fiji School of Medicine in Suva dealing with the availability of psychotropic medication.

13. The Tribunal’s views expressed in its reasons at [97] do not impugn the sentence in the sense explained by the Full Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234. That was a manslaughter case which may be distinguished on its own peculiar facts. There, although the trial judge had made an express finding about the cause of death, the Tribunal apparently took the view that that finding was not open to him. In the present case the evidence relied on by the Tribunal was not before the sentencing judge. In particular, the Tribunal in this case did not engage in an inquiry which would impugn the sentence. The Tribunal did not accede to a tentative submission by the respondent’s counsel that the sentence may not have been appropriate. It is true that, in his sentencing remarks, Mitchelmore DCJ did refer to the sentencing principle that less weight should be given to considerations of general deterrence where an offender is suffering from a mental disorder: R v Letteri (unreported, NSW Court of Criminal Appeal, 18 March 1992) per Badgery-Parker J at 14.  However, his implicit acceptance of the views expressed in Dr Westmore’s report does not amount to a finding of “historical fact” as that term was used in SRT.

14. The decision of the Tribunal is not based on considerations inconsistent with the convictions and sentence.  The Tribunal did exactly what the Minister’s delegate did.  It had regard to the current diagnosis of the respondent’s mental condition and to the fact that he had only begun to receive psychiatric treatment once he was in the prison system.  Dr Westmore was not a treating doctor.  He was qualified by the respondent’s solicitors only after the guilty pleas had been entered for the sole purpose of having his evidence received on sentence.  That is why, on the subject of the respondent’s undoubted mental illness, both parties directed their cases in the Tribunal to questions of his future management and treatment in Fiji or Australia.

15. Neither ground of appeal is made out.  The appeal will be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             22 November 2000

Counsel for the applicant:	R J Bromwich
Solicitor for the applicant:	Australian Government Solicitor
Counsel for the respondent:	R W Killalea
Solicitor for the respondent:	Kalmath Lawyers
Date of hearing:	3 May 2000
Date of judgment:	22 November 2000