Oscar and Minister for Immigration and Multicultural Affairs - [2000] AATA 861

DECISION AND REASONS FOR DECISION [2000] AATA 861

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/516

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MAX BRENDON OSCAR
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date27 September 2000
PlaceBrisbane

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

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – seriousness of offence – first criminal offence – out of character behaviour – risk of recidivism – best interests of the children – hardship.
Migration Act 1958 s 200

REASONS FOR DECISION

27 September 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision made on 5 June 2000 by a delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant, Max Brendon Oscar, under Section 200 of the Migration Act 1958.
The matter was heard before me on 30 and 31 August 2000. Written submissions were received from the applicant on 18 September and from the respondent on 19 September 2000. The matter was resumed for submissions in reply on 21 September 2000. The applicant was represented by Mr D Rangiah of Counsel instructed by Ms S Caton, Migration Agent. Mr P O'Higgins of Messrs Blake Dawson Waldron represented the respondent Minister.
Oral evidence was given in the applicant's case by the applicant; Eseto Tauati, the applicant's de facto wife; Mabel Vidot, the applicant's sister and Marco De Mink, the applicant's former employer. The Tribunal called Joanne Williams, a Correctional Services' Psychologist to give evidence. Diane Scates, Barry Hildred, Jeffery Adams and Willebrordus de Jong, Correctional Services Officers, gave evidence in the respondent's case.
The following documents were taken into evidence.

Exhibit 1 "T" Documents
Exhibit 1A Supplementary "T" Documents
Exhibit 2 Statement of Max Brendon Oscar dated 30.8.00
Exhibit 3 Statement of Iosefa Chong-Nee dated 21.8.00
Exhibit 4 Statement of Mabel Vidot dated 21.8.00
Exhibit 5 Statement of Eseta Tauati dated 21.8.00
Exhibit 6 Statement of Marco De Mink dated 22.8.00
Exhibit 7 Bundle of documents from the Corrective Services File
Exhibit 8 Documents relating to criminal compensation proceedings
Exhibit 9 Transcript of Police Interviews
Exhibit 10 Letter from Brenda Toni Chong-Nee
Exhibit 11 Prisoner Request Form

The applicant is 32 years of age and a New Zealand citizen. He arrived in Australia in 1994 with his wife and two children. In 1996 he separated from his wife and has been living with his current de facto wife since 1997. In December 1998 the applicant was convicted of grievous bodily harm with intent to disable, on a plea of guilty. He was sentenced to 5 years imprisonment to be suspended for 5 years after 18 months. It is this offence which brings him within the ambit of Section 200 of the Migration Act 1958.
The applicable Ministerial Direction is Direction No 9 – General Direction – Criminal Deportation. The Direction states that the primary considerations are the expectations of the Australian community, and, where the applicant is involved in a parental relationship with a child, the best interest of that child.
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.
Issues to be taken into account when evaluating the protection of the Australian community include the seriousness and nature of the offence or offences committed by the applicant, the risk of recidivism and the deterrent effect of deportation on other non-citizens.
Considering firstly the seriousness and nature of the offence committed, it is conceded by the applicant that the deportable offence is of a very serious nature. The applicant attacked another man with machetes and inflicted serious injuries to the victim's upper arms, elbow and ear. However, as noted by the Sentencing Judge, this incident was not without a background. The applicant and his de facto wife had been subjected to reverse racism and urban violence over a concentrated period of time. In the 3 days leading up to the incident, their house had been broken into, their car window smashed and they had been confronted by a group of aboriginal men from their neighbourhood each night. These confrontations were extremely threatening and the Police did not respond to the applicant's requests for intervention. By the Sunday, the day on which the offence was committed, the applicant and Ms Tauati were sleep deprived, in fear of their lives and frustrated by a total lack of Police protection. Upon coming home on the Sunday afternoon to see a group of around 20 aboriginal men armed with sticks, bars and bats around their house, they had had enough. Later that day, Ms Tauati drove the applicant to the group of units where they believed these men resided. The applicant got out of the car and took the machetes, which he had used earlier in the day to help clean up his sister's yard, for protection. The victim was outside of the house and after the two exchanged words, the Tribunal accepts Ms Tauati's evidence that the victim punched the applicant and that he swung back with the machetes. He returned to the car and they drove away. Once they had calmed down, they went to the Police Station and gave a full admission of the offence. It was accepted by the Sentencing Judge, and therefore by the Tribunal, that the victim had not been involved in the harassment of the applicant but, rather, was visiting friends that night and was in the wrong place at the wrong time.
The applicant's response on that evening was completely inappropriate, a fact evidenced by the sentence imposed. However, the Tribunal accepts that it was the response of an ordinary man who desperately wanted the harassment to stop rather than a deliberate act of criminal violence. It is common knowledge in the community of south east Queensland – and often the topic of media comment – that that part of the city of Brisbane in which the applicant and his family then lived incurs a significant social problem in the form of overt physical rivalry between the large Aboriginal population in the area, on the one hand, and the significant Samoan and Maori population, on the other. Mr Oscar is a member of the Samoan race.
The Tribunal accepts the evidence of the applicant and Ms Tauati as to the circumstances of the incident. Ms Tauati was particularly credible and clear as to the sequence of events.
These circumstances do not alter the fact that the applicant comes to the Tribunal with this serious offence on his record but they provide some insight into the reason as to why it was committed and whether such an offence would be committed again.
In relation to the risk of recidivism, the applicant had a clean record until this incident in 1998. Since that time he has been convicted on one charge of wilful damage in prison. This arose from the applicant, along with other inmates, throwing cell articles on New Year's Eve this year in an inappropriate display of high spirits. Up until 1 January 2000, the applicant had a perfect prison record. The incident on New Year's Eve resulted in the applicant not only being dealt with by the Magistrates Court, but also being placed in solitary confinement in the Detention Unit for 3 days. The applicant viewed this as double punishment and reacted badly. The applicant's behaviour deteriorated further in February and he was again breached a number of times.
The applicant had been informed in April 1999 that once he completed the core programmes he would receive a low security rating and would be transferred to a low security prison. The applicant was desirous of this as it would mean that he could have his children visit in a more family-oriented environment. The applicant completed the relevant courses in August and his file was referred to Case Management in September as shown by Exhibit 11. By February, despite repeated requests for information, Mr Oscar could not obtain a date for his transfer to a low security prison. The Tribunal accepts Mr Hildred's evidence that the applicant was agitated and aggressive in response to being told yet again, on 15 February 2000, that his file was still being looked at. The applicant was breached for that incident and given another 7 days in the Detention Unit. The applicant was further breached on 22 February 2000 whilst in the Detention Unit for threatening officers. The Tribunal accepts the officers' evidence as to the details of these and other incidents. Their evidence was strengthened by their being able to refer to contemporaneous reports of the incidents.
It is relevant, however, that during this time the applicant was greatly distressed by the failure to get any information on his transfer. Whilst in the Detention Unit he was sleeping most of the time, he was withdrawn, experiencing extreme mood swings and was refusing to come out of the cell for exercise. The various Correctional Services Officers and their reports attested to all these behaviours. The applicant displayed an increased inability to respond appropriately to situations and exhibited symptoms of depression, as outlined in the DSM-IV text. Correctional Services Officers, rather than seeking to have his psychological state assessed and treated, instead continued to breach the applicant and eventually had him transferred to another prison.
Ms Williams, a Correctional Services' Psychologist, prepared a psychological profile on Mr Oscar for Sentence Management. The Tribunal accepts her evidence that she did a complete file review in order to prepare her report. However, it is the Tribunal's view that in completing that report she should have noted the applicant's psychological state and taken the time to interview the applicant. Her failure to do this reduces the acceptability of her diagnosis that the applicant simply exhibits poor impulse control and has a tendency to over-react to frustrations. The weight of her evidence is reduced accordingly.
The respondent has submitted in many cases before this Tribunal that good behaviour in prison is not necessarily indicative of the applicant's ability to stay out of trouble in the community. I accept that submission as according with commonsense. However, it is also my view that neither can an inability to cope with the atmosphere in prison over a prolonged period be automatically considered indicative of the applicant's future conduct in a community setting.
In relation to the applicant's position, if he is released into the community he will continue to live with Ms Tauati who has moved out of the community they were living in at the time of the incident. He has an offer of employment from his former employer. Although Mr De Mink was surprised to hear of the applicant's behaviour in prison, this only further confirms that the behaviour is out of character for the applicant. The Tribunal accepts that this offer of employment is a genuine offer. The applicant also has a supportive family here in Australia. Finally, the applicant will be subject to his suspended sentence for a number of years which will also act as a deterrent against criminal or anti-social conduct. It is the Tribunal's view that, given the whole history of this applicant and the circumstances surrounding both the offence and the prison behaviour, the applicant's risk of recidivism is acceptably low.
I have considered the respondent's submissions regarding the deterrent factor. In the circumstances of this case, I do not consider them to be persuasive to the point of reversing my decision as to the proper outcome of the matter.
Finally, the Australian community does expect to be protected from persons who commit abhorrent crimes and that non-citizens who are convicted of such will be removed from Australia. It is admitted that the crime itself and the injuries inflicted were very serious and the Australian community may be quite appalled by them. However, taking into account all of the circumstances, the community's expectations would not mandate the applicant's removal from Australia.
The second primary consideration in this case is the best interests of the applicant's two children, Brenda aged 7 and Brandon aged 5. 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 and his wife are divorced. However, the applicant has regular contact with the children and obviously has a strong bond with them. Before he was incarcerated he paid maintenance for them and will continue to do so if he is permitted to remain in Australia. He said in evidence that he will also do so if he is deported; however, he may not be able to do so for some months due to the expense of re-establishing himself in New Zealand.
The applicant, the applicant's former wife and the children are all desirous of the applicant continuing to have a physical presence in the children's lives. The Tribunal's assessment is that their best interests are served by allowing the applicant to remain in Australia.
The applicant has been convicted of a very serious offence but he has a low risk of recidivism and it is in the best interests of his children that he remains in Australia with them. Therefore, the primary considerations are balanced in favour of the applicant.
The secondary considerations include the degree of hardship which would be suffered by the applicant and by Australian citizens or permanent residents.
The applicant has most of his family, as well as his children, in Australia. He has two sisters in New Zealand. One of the sisters is intending to migrate to Australia. He has not maintained contact with the other. The applicant's de facto wife, Ms Tauati, has said that she will relocate to New Zealand if the applicant is deported. If Ms Tauati is permitted to immigrate to New Zealand by the authorities of that country – and there is no guarantee of that and no evidence before me either way - this will cause her and her family a great deal of hardship. Some members of her family are resident in Sydney and others are living with her at the moment. They all rely on her for emotional and financial support.
Finally, the applicant's former wife is currently suffering hardship due to the applicant's incarceration, which she will continue to suffer if the applicant is deported until he can re-establish himself in New Zealand. While it is true that the applicant has spent his formative years in New Zealand and, given his work record, should be able to obtain employment fairly quickly, these factors hardly offset the hardship he and others would suffer. It is my finding that the secondary considerations are also balanced in favour of the applicant.
For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant be permitted to remain in Australia.

I certify that the 27 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  30.8.00, 31.8.00
Date of Decision  27.9.00
Counsel for the Applicant        Mr D Rangiah
Solicitor for the Applicant         Ms S Caton, Migration Agent
Counsel for the Respondent
Solicitor for the Respondent    Mr P O'Higgins, Messrs Blake Dawson Waldron