Nepson and Minister for Immigration and Multicultural Affairs - [2000] AATA 930

DECISION AND REASONS FOR DECISION [2000] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/638

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SHANE NEPSON
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date25 October 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant SHANE NEPSON be permitted to remain in Australia.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – serious offence – best interests of children – sufficiency of warning – parity of treatment.

Migration Act 1958 s 200
Phung and Minister for Immigration and Multicultural Affairs [2000] AATA 855]

REASONS FOR DECISION

25 October 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision made on 6 June 2000 by a delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant SHANE NEPSON under Section 200 of the Migration Act 1958.
The matter was heard by me on 25 September 2000 in Brisbane. Mr Nepson was represented by his fiancee's father, Mr F Snowden. Mr P O'Higgins, Solicitor of Messrs Blake Dawson Waldron represented the respondent Minister.
Oral evidence was given at the hearing by the applicant; Rebecca Kena, the applicant's sister and Kathleen Emma Rawinia Snowden, the applicant's fiancee.
The following documents were taken into evidence:

Exhibit 1 "T" Documents
Exhibit 2 Letter from Centrelink dated 22.9.00 to Department
Exhibit 3 Statement of Raymond Thomas Toi Whare
Exhibit 4 Statement of Hina H Taunoa
Exhibit 5 Statement of Veronica Nepson
Exhibit 6 Statement of Jenny Snowden
Exhibit 7 Statement of Trevor Hall dated 1.8.00
Exhibit 8 Statement of Elsie Wright dated 9.8.00
Exhibit 9 Statement of Kathleen Emma Rawinia Snowden
Exhibit 10 Statement of Rebecca Kena dated 2.8.00
Exhibit 11 Statements of Andrew and Angela Perry dated 2.8.00
Exhibit 12 Statement of Neil Allen, National Polystyrene Systems dated 11.7.00
Exhibit 13 Extracts from Corrective Services File

Mr Nepson is 23 years of age and a New Zealand citizen. He arrived in Australia in January 1996 to join his mother and sister and has not departed since. He has been in a de facto relationship for over 3½ years. He has a son and a step-daughter, both of whom are Australian citizens. In May 1999 he was convicted of assault occasioning bodily harm with a circumstance of aggravation. He was sentenced to 18 months imprisonment to be suspended for 2 years after serving 3 months. It is this conviction which brings him within Section 200 of the Migration Act.
The applicable Ministerial Direction is Direction 9 – General Direction – Criminal Deportation. The Direction states that the primary considerations are the expectations of the Australian community and, where an applicant is involved in a parental relationship with a child, the best interests of that child.
Issues to be taken into account when evaluating the protection of the Australian community include the seriousness and nature of the offences committed by the applicant, the risk of recidivism and the deterrent effect of deportation on other non-citizens.
Considering, firstly, the nature of the seriousness of the offence, Mr Nepson was convicted of assault occasioning bodily harm with circumstances of aggravation. The particulars of the incident are that Mr Nepson and his co-offender attacked a stranger in the toilets of a nightclub and repeatedly kicked him causing extensive injuries. This is a despicable display of violence and the seriousness of the offence cannot be minimised.
Considering, secondly, the risk of recidivism, this was not Mr Nepson's first offence - he had been convicted of some shoplifting offences in New Zealand whilst still a minor and had been charged with speeding here in Brisbane. These are offences more of a social pest than those of a career criminal. Mr Nepson has served his time without incident and expressed remorse for his actions at both his sentencing and during interviews with the Department of Immigration and Multicultural Affairs. He offered no excuses for his behaviour and accepted full responsibility for his actions. Whilst in prison he has completed the Cognitive Skills Programme and received a very positive exit report from the Programme Faciliator. His short stay in prison prevented him from completing any of the other behavioural programmes usually offered by the prison. The applicant has an offer of employment upon his release and a supportive family to which to return. The realisation that his criminal activities could see him removed from this country will also act as a deterrent in the future. The Tribunal assesses the risk of recidivism as acceptably low. The Tribunal is well aware that the risk of recidivism the Australian community expects to bear with respect to serious and violent crimes is very low.
The applicant's co-offender was his future brother-in-law who is also a New Zealand citizen. As such, the general deterrent effect would carry some weight in this case, although the co-offender's own warning with respect to deportation would serve a similar purpose.
The Australian community does expect to be protected from persons who commit abhorrent crimes and that non-citizens who are convicted of such crimes will be removed from Australia. In this case the crime is very serious but would not be considered so abhorrent as to overshadow all other considerations and mandate the applicant's removal from the country.
The second primary consideration in this case is the best interests of the applicant's son and step-daughter, aged 1 year and 7 years respectively. The starting point for this consideration in the Ministerial Direction is that the children's best interests will be served by their remaining with both parents. The applicant has a close bond with his step-daughter and loves his son dearly. Ms Snowden has said she will take the children to New Zealand if the applicant is deported. Given that New Zealand has a similar culture with well-developed education and health systems, there should be limited hardship suffered by the children upon relocation. However, Ms Snowden gave evidence that, if social conditions were the same as when she left New Zealand and the gang culture is impacting upon her children, she would be sending them back to Australia to live with their grandparents. The prospect that the children would end up living apart from both parents is clearly not in their best interests, although it is only a possibility that this set of events will occur. There is clearly a better prospect of the family unit remaining together in the long run if the applicant remains in Australia. This weighs in favour of the applicant not being deported, although only marginally.
Therefore, the primary considerations are fairly evenly balanced. The secondary considerations include the degree of hardship which would be suffered by the applicant and by Australian citizens or permanent residents.
The applicant's family and his fiancee's family reside in Australia. The applicant does have a number of step-brothers and sisters in New Zealand. However, they are all significantly older than him and he has had little interaction with them. The applicant's fiancee is close to her family and would be faced with losing that closeness. Her ability to return to Australia on occasion, particularly with the children, would be dependent upon financial constraints and whether she and the applicant can obtain work in New Zealand. The family members will only be able to visit New Zealand occasionally due to work commitments and financial constraints. The applicant has accommodation, employment and a supportive family in Australia. He has none of these in New Zealand.
The applicant has been convicted of a serious crime. He has, however, shown signs of rehabilitation and is assessed as having an acceptably low risk of re-offending. His children's best interests are served by them remaining with both parents and this is better served by their parents being able to remain in Australia. The applicant and his fiancee would suffer hardship in relocating back to New Zealand where the applicant does not have employment. His family would suffer emotional hardship if he were deported, as would Ms Snowden's family if she were to go with him. This case is fairly balanced. However, given the applicant's youth and minimal previous criminal history, it is more appropriate for a warning to be issued in this case. The fact that his co-offender also only received a warning, although not in any way determinative in this case, is consistent with parity of treatment, a core principle in our justice system, and a factor which bears some consideration in this jurisdiction [see Phung and Minister for Immigration and Multicultural Affairs [2000] AATA 855].
The setting aside of the decision under review in no way absolves Mr Nepson from liability to deportation in the future. The offence which enlivened the power under Section 200 this time can be used as a basis for deportation in the future if Mr Nepson steps out of line even in the most minimal of ways in the future. These proceedings have served as a very clear warning to Mr Nepson that the Australian community does not tolerate criminal activity by non-citizens and he would do well to take heed of it.
For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant SHANE NEPSON be permitted to remain in Australia.
I certify that the 17 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  25.9.00
Date of Decision  25.10.00
Rep. for the Applicant              Mr F Snowden
Solicitor for the Respondent    Mr P O'Higgins, Messrs Blake Dawson Waldron