Moore and Minister for Immigration and Multicultural Affairs - [2000] AATA 390

DECISION AND REASONS FOR DECISION [2000] AATA 390

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/1211

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SHOEBNA ANN MOORE
  Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date19 May 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant, Shoebna Ann Moore, be allowed to remain in Australia.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – Section 200 Migration Act 1958 – abhorrence of crime – rehabilitation of applicant – balancing of consideration – extreme hardship to applicant.
Migration Act 1958 s 200
Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713

REASONS FOR DECISION

19 May 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision made on 1 April 1998 by a Delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant, Ms Shoebna Ann Moore, under Section 200 of the Migration Act 1958.
The matter was heard before me in Brisbane over six days. The hearing began on 15 and 16 March 2000. It resumed on 24 March, 4 and 5 May and concluded with oral submissions on 11 May 2000. The applicant was represented by Mr Greg Milles of the Caboolture Legal Aid Office. Mr Murray Belcher of the Australian Government Solicitor's Office represented the respondent Minister. Both representatives were of significant assistance to the Tribunal in this difficult case.
Oral evidence was given by the applicant; her mother, Dianne Tapsall; her stepfather, Kevin Smith; her brother, Scott Smith; her Aunt, Veronica Moore, and her Uncle, Colin Moore. Evidence was also given by Dr Wendell Rosevear, a Doctor and Counsellor in the prisons, and Major Bruce Buckmaster, an officer of the Salvation Army and a chaplain in the prisons.
The following documents were placed into evidence:

Exhibit 1 "T" Documents
Exhibit 2 Supplementary "T" Documents
Exhibit 3 Report of Dr W Rosevear dated 13/3/00
Exhibit 4 Letter from the Applicant dated 7/9/97
Exhibit 5 Progress Notes dated 4/3/98
Exhibit 6 Extracts from the Corrective Services File
Exhibit 7 Cognitive Skills and Anger Management Program Reports
Exhibit 8 Court of Appeal Transcript
Exhibit 9 Block Officer Report 30/4/99
Exhibit 10 Letter from the Applicant dated 16/11/99
Exhibit 11 Progress Report from Occupational Health and Safety Program
dated 30/8/99
Exhibit 12 Sentence Management Educational/Vocational Review Report
Exhibit 13 Case Management Review Report dated 23/8/99
Exhibit 14 Sentence Management Review Report dated 23/8/99
Exhibit 15 Drug Offender Intervention and Treatment Certificate 1999
Exhibit 16 Sentence Management Review Report dated 2/9/99
Exhibit 17 Progress Notes dated 17/9/99 to 3/12/99
Exhibit 18 Submission to Parole Board
Exhibit 19 Letter to Parole Board on 16/2/00
Exhibit 20 Letter Granting Parole 23/2/00
Exhibit 21 Case Management Review Report dated 26/10/99
Exhibit 22 Work Report dated 16/11/99
Exhibit 23 Welding and Thermal Course Report dated 19/11/99
Exhibit 24 Bundle of Documents relating to prison behaviour and programs
undertaken
Exhibit 25 Copy of Letter from University of Southern Queensland
Exhibit 26 Statement of Major B Buckmaster dated 2/5/00

The applicant is 23 years of age and a New Zealand citizen. She arrived in Australia to join her mother, stepfather and stepbrother in 1989. She returned to New Zealand to live with her father in late 1990 and then returned to Australia in 1994. Apart from two brief trips to Taiwan, she has remained here since.
This has been a difficult and borderline case. On the one hand, there is an applicant with an extensive criminal history, which she accumulated over a very short period of time. Included in that history are offences of theft and drug usage as well as the deportable offence, which was constituted by a cowardly robbery involving the stalking of, and the violent physical abuse of, a defenceless young woman. On the other hand, there is an applicant who, despite a very dysfunctional childhood, has, four years later, made a significant turn-around in her life, according to the assessments of those best placed to make that appraisal of her. She is currently drug-free. She is a positive influence on other prisoners. She is studying at a tertiary level. She expresses genuine remorse for her actions and empathy for her victims. She has re-established a close and loving relationship with her mother and stepfather and has realistic plans for her future re-integration into society. She is aware that her drug habit is not entirely dealt with, although she has been drug-free for nearly two and a half years. She is aware of the risks of relapsing and is prepared to continue counselling to help her remain drug free.
The applicable Ministerial Direction is Direction 9 – General Direction – Criminal Deportation. This Direction states that the primary considerations are the expectations of the Australian Community and in cases involving children, those children's best interest. Despite some argument on the matter, the Tribunal finds that the latter consideration does not apply in this case. As a matter of general construction, the consideration only applies where a parental or like relationship exists, not in the case of a brother/sister relationship.
There are two aspects to community expectations. Firstly, the expectation that the community will be protected and not put at risk, and, secondly, the expectation that non-citizens who commit and are convicted of crimes which are abhorrent to the Australian Community will be removed from Australia.
The first consideration in relation to the protection of the Australian Community is the seriousness and nature of the offences committed by the potential deportee. The applicant's criminal history consists of:
Break and Enter dwelling house with intent and stealing. This incident occurred when some of her boyfriend's friends asked her and her boyfriend to assist them in recovering an alleged debt. They ended up taking property in lieu of the alleged debt. No conviction was recorded for this offence.

March 1996Aggravated Assault on a Female. This offence occurred when in a state of drug psychosis she attacked a car and its female occupant, whom she thought had tried to run her over. Again, no conviction was recorded.
Steal with Actual Violence whilst armed with an offensive weapon and in company. This was the attack on a young woman as she walked home from the bus stop and involved the use of a screwdriver. She was sentenced to five years imprisonment, with 18 months to be served and the rest was suspended.

April–July 1996 Whilst on Bail the applicant committed a number of offences of stealing with violence in company and unlawful use of motor vehicle offences. These offences were in the form of stealing cash registers and/or their contents and using stolen motor vehicles to make their getaway. She was sentenced to 4 years prison for these offences.
August 1997 Possession of a prohibited article. This offence related to a drug overdose in prison and resulted in an extra 2 months imprisonment and 4 months of her suspended sentence from 1996, being imposed.
March 1998Shortly after release from custody, she was charged with aiding a prisoner to escape, unlawful use of a motor vehicle and stealing. This was after she found out that she was going to be deported and she and her boyfriend, another prisoner, decided to spend some time together before she went to New Zealand. She was sentenced to 3 years imprisonment, with a further three years of her suspended sentence activated.

This is one of the most rapid descents into criminality I have seen in my lengthy career in the law. It is not excusable, but it is explicable by her drug addiction. She began using speed in early 1996 and within a month was taking it four times a day. Her brother introduced her to heroin in around March of 1996 and she very quickly became addicted. Apart from the very first offence in 1995, all of her criminal behaviour is referable to this drug addiction which took control of her life. These offences are all serious, a fact which cannot be diminished, but they are not without explanation.
The second consideration in relation to the protection of the Australian community is the risk of recidivism applicable to the applicant. In assessing this risk it is important to consider why the applicant committed crimes and whether the same circumstances and motivations exist today.
Ms Moore's childhood can only be described as extremely dysfunctional. Her parents separated when she was seven years old. Within three years her mother had a new partner and they relocated from Auckland to Christchurch, with the applicant and her brother, Warwick. Both children were quite upset at leaving their father and somewhat resentful of Mr Smith, their mother's partner. This escalated when in 1989 they all moved to Australia. Added pressures within the family, including unemployment and the finalisation of divorce proceedings, occurred during 1990. In September 1990 the children went to New Zealand on a holiday and towards the end of it, their father told them that they were staying there to live, as their mother didn't want them any more. They lived there until 1994. Whilst Ms Moore excelled at school, she found her father extremely strict and resented her father's de facto wife for trying to take her mother's place. The relationship between both children and their father broke down and they moved out of his house towards the end of 1993. In early 1994 they returned to live with their mother and stepfather in Brisbane.
This arrangement lasted only about six months. Ms Moore and her brother moved out on their own and later Ms Moore moved in with her boyfriend. It was through this relationship that she was involved in her first offence in 1995. Shortly after her then male friend returned to Taiwan, she was introduced to "speed", the drug-world vernacular term for amphetamine drugs. Within four weeks she became addicted, increasing her intake from weekend use to four times a day. Around March 1996 her brother Warwick introduced her to heroin and within a very short time she was supporting a $1000 per day habit.
This habit continued whilst in prison, although to a substantially smaller degree. Whilst in prison, she developed a relationship with another prisoner, Peter Brennan. In August 1997 she overdosed, and her family, out of hurt and anger, cut all ties with her. As a result she came to depend further on Peter Brennan. In March 1998, Ms Moore was given less than 24 hours notice of her release from custody. Her parents would not permit her to stay with them at that stage, because of her drug usage. Accordingly, it was arranged for her to move in with a Chaplain and his family, whom she had never met before. At this time deportation proceedings were on foot against her and the decision to deport, which is the subject of this review, was ultimately made on 1 April 1998. The stress of this news, together with her lack of family support, caused her to return to drugs and rely more on Peter Brennan. The two of them decided that they would spend her last few weeks in Australia together, which led to her arrest and conviction for aiding an escape in April 1998, she having assisted Peter Brennan to flee detention.
In December 1998 Ms Moore began to associate with prisoners in another cell block. These women were older, studying, and not using drugs. On their encouragement, Ms Moore moved into their cell block, made a conscious decision to stop taking drugs, severed her ties with Peter Brennan and began studying. She has since that time continued her studies, she has become a member of prisoner advisory boards, she has assisted other prisoners with their legal matters, she has undertaken drug counselling and remained drug-free. In July 1999, after around 18 months complete separation from her family, Ms Moore made contact again with her mother. Although wary at first, her family again started to visit her. Their relationship with her was re-established. Her mother and step-father both gave evidence in very positive terms of the changes they found in her. They are now fully supportive of Ms Moore and willing to have her live with them. They will also provide emotional and financial support and are happy to have her as a part of their community, because they have seen the effort she is making at rehabilitation.
Ms Moore has positive plans for her future and has realistic expectations about her rehabilitation. She intends to continue tertiary studies, but will do so from home as she realises that living on her own puts her at a higher risk of relapsing. She intends to continue drug counselling into the future and to re-establish herself with friends who are not a part of her criminal past. Major Buckmaster and Dr Rosevear both gave evidence of the change they had observed in Ms Moore; and while both agreed that you could not give any guarantees with drug addicts, that they both had confidence in Ms Moore's prospects of rehabilitation.
It is the finding of the Tribunal that Ms Moore's actual risk of recidivism is low, provided that she does not recommence drug usage. This was a fact conceded by the respondent. There is, however, a real risk, as with any drug addict, that she will relapse. When considering the impact of this particular risk on the protection of the Australian public, the Tribunal has taken the following factors into account. Ms Moore is aware of this risk and the situations which elevate this risk; she has family support and a different attitude from that which she had when released in 1998; and her stepfather has assured the Tribunal that if Ms Moore were to relapse, he would be the first on the phone to the Police. The Tribunal considers Mr Smith to be a man of integrity, who will make tough decisions when he has to. Although he loves his stepdaughter, he has a young son whom he does not want exposed to drug usage. Given these factors, the Tribunal assesses the risk of recidivism as acceptably low enough to ensure the protection of the Australian Community.
The final aspect of the protection of the Australian Community is the effect deportation might have in deterring other non-citizens from committing crimes in Australia. While this may have significant weight in relation to notorious criminals or leaders of crime syndicates, it is of little relevance in cases such as this, where the event is often not publicised outside of the deportee's immediate family and friends and no contact is maintained with co-offenders. As such, little weight is given to this consideration.
In relation to the second primary consideration, the Australian Community does expect to be protected from abhorrent crimes and expects that non-citizens who are convicted of such will be removed from Australia. Ms Moore's crimes are within the category of abhorrent crimes, however the expectation that she be deported is lessened by her extensive rehabilitation and the real likelihood that she will in time put back into the Australian community more than she has taken from it.
The secondary considerations include the degree of hardship suffered by the applicant and by Australian citizens or permanent residents.
If Ms Moore remains in Australia, she has emotional and financial support from her family. She has an extended family network, including her Uncle and Aunt, Colin and Veronica Moore. They were a positive influence during the applicant's early years and it is their evidence that they would have been there for Ms Moore during her teens, but they were precluded from finding out her whereabouts by her father. Ms Moore is currently enrolled in University and now has a trusting and open relationship with her counsellors.
If Ms Moore is deported to New Zealand she has less support available to her. Although it is likely that her father would support her financially, he has communicated with her only once in the last four years. Ms Moore feels the relationship is such that she would not be comfortable residing with him. Ms Moore's brother, Warwick, is also in New Zealand and is still trying to re-establish himself there. There is some question as to the extent of his rehabilitation and his ability to provide financial and emotional support to the applicant. There are some other relatives in New Zealand, but given the evidence before the Tribunal, it is not clear whether such relationships, particularly with aunts and cousins, would be a positive influence on Ms Moore. Ms Moore would have to seek out new counsellors and support groups in New Zealand and it may take some time to establish the type of trust and rapport she has with those in Australia. Ms Moore may be able to enrol in university in New Zealand and should be able to attain employment. However, this may be a more difficult task than in Australia, given the lower degree of support she will have there.
The Tribunal was referred to the recent Federal Court decision of Bustescu v. Minister for Immigration and Multicultural Affairs [1999] FCA 1713. In this case Justice Sackville said in relation to the Ministerial Direction:
"The Direction must be read as preserving the discretion of the decision-maker to take into account all the relevant circumstances of the cases and, if otherwise appropriate, to hold that the hardship likely to be experienced by a potential deportee outweighs even serious criminal conduct."
While the Tribunal agrees with the concept that this is a balancing task and that the Direction is merely a guide to that task, this is not really a case of extreme hardship. Cases like Bustescu, where persecution is likely, or where there are no relatives or friends whatsoever left in the country of origin, more aptly come within the class of extreme hardship. There is no doubt, however, that Ms Moore would suffer considerable hardship. She will also be losing the close relationship she has developed with her mother and stepfather, not to mention the loss of the close and obviously loving relationship with her younger brother, Scott.
Mrs Tapsall, Mr Smith and Scott would all lose the close relationship they have developed with Ms Moore if she were deported. It has taken this family a long time to work through many years of hurt and misunderstanding and to build honesty and trust back into their family. To be denied the opportunity to stay together as a family would cause real hardship to them. Scott is only 11 years of age and dotes on his older sister. Even while she was living away from home the applicant still spent quality time with Scott and tried to make sure that he was not exposed to her drug taking. She loves him and is very protective of him. Although Scott would adjust to the deportation, he would lose this close relationship, as deportation is forever.
Ms Moore's extended family would also lose their relationship with her. This is especially the case with Colin and Veronica Moore, who are very keen to become an integral part of her life again. Since they were first aware of where Ms Moore was in October 1999, they have visited her on a regular basis and to be separated from her again would cause them hardship.
These factors lead to the secondary considerations being balanced in favour of allowing Ms Moore to remain in Australia.
As said at the outset, this has been a very difficult case. The crimes committed are abhorrent and the descent into criminality quite rapid. On the other hand, there is genuine and extensive rehabilitation by a young woman who has great family support here in Australia, and in all likelihood will become a positive contributing member of the community in the future. Her risk of recidivism is low, provided she stays away from drugs. Her attitude towards this is very realistic. Ms Moore is very aware of the fact that her criminal record remains with her forever, as does her liability to deportation. These proceedings have served a very severe warning to Ms Moore and she is also aware that if she transgresses her own family will alert the Police, to protect themselves and their community.

As such, it is the Tribunal's view that the Australian community is protected in this situation to such a degree as to allow Ms Moore to remain in Australia; and that given all the circumstances, community expectations would not require deportation, but rather allow for a second chance. Such a second chance is not to be taken lightly. Residence in Australia is a privilege and the slightest foot wrong will see Ms Moore involved in a very speedy deportation, a fact of which Ms Moore has been made very aware by me.
For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant, Shoebna Ann Moore be allowed to remain in Australia. That she has received a very clear, and a very authoritative warning of her liability to deportation, is self-evident from the process thus far, and from very clear statements as to her future position which I made to her during the course of her hearing.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  15, 16, 24 March; 4, 5, 11 May 2000
Date of Decision  19 May 2000
Solicitor for the Applicant         Mr G Milles, Caboolture Legal Aid Office
Solicitor for the Respondent    Mr M Belcher, Australian Government Solicitor's Office