Paek and Minister for Immigration and Multicultural Affairs - [2000] AATA 747

DECISION AND REASONS FOR DECISION [2000] AATA 747

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/228

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SEUNG MIN PAEK
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date25 August 2000
PlaceSydney

Decision The decision under review is set aside.

[Sgd] R N J Purvis
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – deportation – manslaughter conviction – serious nature of crime – risk of recidivism very low – expectations of the Australian community that non-citizens who are convicted of crimes that are abhorrent will be removed from Australia – no general deterrence under the circumstances – hardship to deportee and deportee's family – expectations of community outweighed by other considerations.
Migration Act 1958-s200
Whittaker v. Minister for Immigration and Multicultural Affairs [2000] AATA 425.

REASONS FOR DECISION

25 August 2000 The Hon Mr R N J Purvis, QC, Deputy President

THE APPLICATION:

This is an application by Seung Min Paek also known as Simon Paek ("the Applicant") seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") on 8 February 2000 to order deportation of the Applicant under section 200 of the Migration Act 1958 ("the Act").
The relevant Deportation Order inter alia stated:
"…
AND WHEREAS the said SEUNG MIN PAEK was convicted at the Supreme Court of New South Wales on the eighteenth day of December 1998 of an offence, namely manslaughter, which he committed on the thirtieth day of April 1997, for which he was sentenced to penal servitude for a minimum term four years with an additional term of three years.
AND WHEREAS the said SEUNG MIN PAEK appealed the severity of the said conviction and on the fifteenth day of October 1999 at the Court of Criminal Appeal, leave to appeal was granted, the appeal allowed with sentences being reduced to a minimum term of two years and nine months with an additional term of two years and nine months.
AND WHEREAS at the time of the commission of the said offence the said SEUNG MIN PAEK was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand citizen exempt non-citizen, or special category visa holder for less than ten years.
…" (T1, p8)

In the Statement of Reasons given for the making of the Deportation Order it was stated:
"4         I found the following factors weighing against deportation:
      q     Mr Paek's risk of recidivism is assessed as being low;
·If deported from Australia Mr Paek will suffer a significant degree of emotional hardship;
·Mr Paek's father will suffer emotional hardship if his son is deported from Australia.
5          I found that the following factors weighed in favour of deportation:
·The nature of Mr Paek's offence is one which is considered to be very serious and may lead to deportation as listed in the Government's criminal deportation policy.
·Mr Paek's crime is unacceptable to the Australian Community as it involved violence against another person.
…"    (T2)

THE HEARING:

At the hearing of the application before the Tribunal, the Applicant was represented by Mr Ron Kessels, Solicitor, the Respondent by Ms Susan Fraser, a departmental advocate.
The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence and marked T1 to T49. The following written material was tendered, admitted and marked accordingly as exhibits:
Exhibit No A B C D E F Exhibit No G H J K L 1 2 Description Reference from Girrakool Education & Training Unit dated 17 December 1999 Reference from Girrakool Education & Training Unit dated 7 February 2000 School report from Girrakool School dated 16 December 1999 School Certificate – Board of Studies New South Wales – dated 9 December 1999 Department of Juvenile Justice Confidential Psychological Parole Report dated 20 December 1999 Letter to Mr S Scarlett, Senior Children's Magistrate, Bidura Children's Court from Mr Terry Gould of Department of Juvenile Justice Description Parramatta Correctional Centre, Program Review Committee Work Report dated 14 June 2000 Work reference from Mr Ian Batcheldor of S C O Reception Room, Parramatta Correctional Centre dated 12 May 2000 Form of List of Other Offences Charged dated 31 May 1999 Judicial Commission Higher Courts Statistics dated January 1990 to October 1998 Clinical Psychological Assessment by Dr Susan Hayes dated 2 June 2000 Bundle of documents, pages numbered 1-23 Bundle of Victim Impact Statements

The Applicant, his father Mr Charles Paek, his stepmother Mrs Yoke Kahuan Peak, his stepmother's sister Miss Yoke Choy Wong and Dr Susan Hayes, Psychiatrist, gave oral evidence and, except for the sister, were cross-examined on their evidence.
CHRONOLOGY OF RELEVANT EVENTS:
1979 1982 1986 1989 1990 1992 1993 1996 1997 1998 1999 2000 June 10 February April October 16 February September April 30 May 12 May 14 October December 18 March 31 April 23 April 26 April 27 July 24 August 16 August 24 October 11 October 15 October 17 November 2 December 28 January 18 January 28 February 8 February 13 February 18 Birth of Applicant in Korea. Birth of Denis Paek, brother of Applicant. Applicant's father arrives in Australia. Applicant and his brother placed by their mother with an aunt and later in an orphanage in Korea. Mr Charles Paek lodges application for permanent residency. Applicant's stepmother arrives in Australia. Mr Charles Paek granted permanent residency. Mr Charles Paek travels to Korea to locate his sons. Applicant and his brother live with an aunt in Korea. Applicant arrives in Australia as holder of a Class 101 Permanent Residence Visa. Mrs Y K Paek left Australia in order to apply for permanent residency. Mrs Y K Paek returns to Australia. Applicant kills Justin Charles Morcos. Applicant obtains $2,000.00 by deception. Applicant applies for Australian citizenship. Applicant arrested and charged with the murder of Justin Morcos. Dr Westmore, Psychiatrist, reports on the Applicant . Applicant convicted of manslaughter and sentenced to term of imprisonment. Report of Case Work Co-ordinator on Applicant. Applicant transferred to Mount Penang Juvenile Justice Centre Applicant one of a group involved in a staff member being kicked and punched. Applicant informed of possible liability for deportation under the Act. Applicant kicks another detainee. Applicant smoking "dope" at Mount Penang with others. Psychologist's report on Applicant, Mount Penang Juvenile Justice Centre. Hearing of appeal to Court of Criminal Appeal. Decision of Court of Criminal Appeal. Appeal allowed, original sentence quashed. Applicant sentenced to penal servitude for five and a half years with a minimum term of two years nine months commencing 14 May 1997 with an additional term of two years and nine months. The whole of the custodial component to be served in a detention centre. Applicant abusive towards female officer at Mount Penang. Assessment Report on Applicant, Mount Penang Juvenile Justice Centre. Applicant using a drug and with others described as "stoned". Parole Order made by Children's Court. Applicant to accept supervision of Department of Juvenile Justice and New South Wales Probation and Parole Service. Incident - Applicant involved in altercation at Mount Penang. Deportation Order. Applicant eligible for release. Decision by Respondent to maintain detention of Applicant.

FACTUAL SITUATION GENERALLY PRIOR TO ARREST:

The Applicant was born in South Korea on 10 June 1979. This seems to be the preferred date although 10 March 1978 was at one time thought to be the date of birth. His parents separated when he was very young and his father travelled to Australia in 1986 with the intent of obtaining permanent residency in this country. The Applicant and his brother, by reason of the changed lifestyle of their mother, were at first cared for by an Aunt but later placed in an orphanage where they remained until they were located by their father in 1992. After living for a period with an aunt in Korea, the boys were in due course brought to Australia.
The Applicant and his brother initially found it difficult to adjust to life in Australia. This was compounded by their lack of knowledge of English and cultural differences. They attended school and underwent intensive English language courses. However, for one reason or another and in the absence of his father overseas on business, the Applicant began to deviate, to not attend school, use marijuana and associate with persons of a similar bent. The Applicant became uninterested in study and, to use his own words, "became a bad boy", hung around with friends, wasting time and missing school. His use of marijuana increased until it became a daily habit. He began to argue with his father, rejected criticism and any form of discipline. He left his father's home, lived with friends including a girlfriend and maintained the lifestyle of not attending school, using drugs, drinking and staying out at night. In due course he returned to his father's home, enrolled at Bradfield College and commenced a design course. However, unbeknown to his father and stepmother he continued using marijuana and spending time with his associates. It was at this time that the offence occurred and his incarceration shortly thereafter commenced. During the course of his cross-examination the Applicant acknowledged that he had lied to his father about school and use of drugs and that at that time he was not prepared to listen to anyone.
THE OFFENCE, SENTENCE AND INCARCERATION:
The Applicant on 18 December 1998 pleaded guilty to the manslaughter of Justin Charles Morcos. The court at that time was asked to take into account, in sentencing him, the fact that on 30 April 1997 he obtained $2,000.00 by deception. The court duly sentenced the Applicant to a minimum term of four years penal servitude with an additional term of three years. On appeal to the Court of Criminal Appeal the appeal was allowed, the above sentence quashed and the Applicant sentenced to penal servitude for five and a half years to comprise a minimum term of two years nine months, commencing 14 May 1997, with an additional term of two years nine months.
The facts pertaining to the committal of the offence as briefly stated by the Court of Criminal were:
"In the early hours of 30 April 1997 the applicant went to the house of a friend, Justin Wong, intending to buy marijuana. The deceased, another young man whom he did not know, was also at the house. There was some unpleasantness of no particular consequence between the applicant and Mr Wong, on the one hand, and the deceased, on the other. The deceased left the home, as did the applicant some time later.
His Honour's findings about what then occurred are these. The applicant walked towards his car, which was parked in a nearby street. It was quite dark. The deceased was hiding behind a tree, armed with a knife. He grabbed the applicant and threw him to the ground. The applicant also had a knife, which was a small, folding knife. It fell out of his pocket, and he picked it up and opened it. As the deceased came towards him, he stabbed him in the neck and the head. The stab wound to the neck penetrated his upper spinal cord, causing his death." (T19, pp50-51)

In addition to his summation of the facts pertaining to the committal of the offence, the Sentencing Judge noted the explanation of how the Applicant came to stab the deceased as contained in the transcript of an interview which took place between the Applicant and a Police Officer on 14 May 1997. The court summarised the recounting:
"… Some time after the deceased left Wong's house for the second time, the prisoner himself left and made for his car, which was parked in the street not far away. It was quite dark. The deceased was hiding behind a tree, waiting for the prisoner, but the prisoner did not know it. The deceased grabbed him and threw him to the ground. He had a knife. The prisoner also had a knife, a small, folding, camping knife, and it fell out of his pocket onto the ground. He picked it up and opened it. The deceased was coming towards him and he tried to avoid him, but the deceased was stabbed.
By his plea of guilty the prisoner acknowledged that his act was unlawful and dangerous and that he had no defence of self-defence.
By its acceptance of the plea, the Crown acknowledged that the prisoner had no intent to inflict serious injury on the deceased and did not act with reckless indifference to human life." (T28, p87)

The Sentencing Judge continued by saying:
"This is a very serious charge because a life has been taken. The deceased was a placid young man, but mentally ill and apparently addicted to the use of illegal drugs. According to the medical practitioner who cared for him, his condition caused him to act impulsively on occasions. Even though he started the scuffle, he did not deserve to die.
The prisoner had not met the deceased before they found themselves together at Wong's house. He bore him no ill will and would have had no further contact with him if the deceased had not lain in wait for him. The altercation was not of his desire or making. He was surprised in the dark and must have been very frightened when he was thrown to the ground.
There was no evidence to show why he was carrying the knife which fell out of his pocket, but it was not a particularly dangerous object of its kind, and there was no suggestion that it was carried with any intent to injure. The scuffle must have lasted no more than a few seconds.
Although homicides committed by the use of knives are regarded very seriously by the courts, I think that this was one of the least serious offences of that kind because of the lack of any premeditation or ill will on the part of the prisoner and of the circumstance of urgency in which the knife came, almost accidentally, to be available to the prisoner to use.
The prisoner's difficulty in expressing himself during his interview with Detective Sergeant Fry was due partly to the emotion he felt at the enormity of what he had done. I think that he tried to give a complete account of what happened. He expressed regret. He said that he himself deserved death.
He has continued to be contrite. He pleaded guilty as soon as the Crown indicated that it would accept such a plea in discharge of the indictment." (T28, pp88-89)

During his interview with a departmental case officer, it is noted that initially the Applicant did not want to discuss his offence:
"… only that he wished it did not happen. Following encouragement from his case officer, Simon stated that the offence was a mistake and he didn't mean to stab him, he was walking along, it was dark and the person jumped him and started hitting him and he started hitting back. He keeps asking himself why it happened, why he was there, he wished it didn't happen to him. He regards his crime as bad and cooperated with the authorities by saying everything and telling the truth." (T28, p70)

In its reasons for decision the Court of Criminal Appeal noted that the Applicant had telephoned Mr Wong after the incident to tell him of the death of the deceased and that he was responsible for it. It was further noted that the Applicant was conscious of the enormity of what he had done.
The Applicant was 17 years of age at the time of the offences. He had no previous convictions. The Appeal Court received new material disclosing the Applicant's experience of custody at Long Bay and Silverwater before he was sentenced and in detention centres since that time. It said:
"It appears that he found incarceration at Long Bay terrifying. He feared sexual abuse and he alleges that on one occasion he was physically assaulted by prison officers. However when he was moved to Silverwater he felt that he was treated fairly and he was given a part-time job as a sweeper. Unfortunately the situation deteriorated after he was transferred to Kariong Juvenile Justice Centre in December 1998 when he was sentenced. He was at the institution during its notoriously turbulent period of March and April of this year although it is not suggested that he took part in any of the violent or destructive behaviour which occurred at that time."

On 23 April 1999 the Applicant was moved to the Juvenile Justice Centre at Mount Penang. There he was involved in two violent incidents. In one of them he was acting honourably attempting to protect one young man from being assaulted by others. He was seriously injured, requiring surgery for a fractured cheekbone. In the other he was the aggressor, assaulting another resident who was abusing him verbally. However, a report of the Department of Juvenile Justice described his behaviour as having been "compliant and cooperative" since that time. In a report of a departmental psychologist it is said that he is "a thoughtful, mature young man" who is "not a management problem".
Since being sentenced the Applicant has set about furthering his education. Apart from basic tuition in English and Mathematics, he has undertaken a number of specific courses including visual arts. Reports speak very favourably of his application and progress. "He would be able to undertake the School Certificate at Mount Penang next year and would be eligible for Higher School Certificate candidature at that institution in 2001".
RELEVANT LEGISLATIVE PROVISIONS AND DIRECTION:
Pursuant to the provisions of section 200 of the Act, the Minister may order the deportation of a non citizen to whom the relevant provision of the Act applies. Section 201 of the Act provides:
"Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i) had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
(ii)…; and
(c)the offence is 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;
section 200 applies to the person."

Section 499 of the Act provides:
"(1)A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.
(2)Subsection (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 signed a General Direction under section 499 of the Act relating to Australia's criminal deportation policy. The Direction provides guidance to decision makers in considering deportation decisions under sections 200 and 201 of the Act and describes the object of the Act as:

"… to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to deport from Australia those non-citizens who have abused the privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it."

It is noted that, subject to the statutory 10 year period, for the purpose of determining whether the person is a potential deportee, amongst other considerations, the length of time that the person had spent in Australia at the time when the sentence is imposed is irrelevant.
The Directions detail primary and other considerations that are to be taken into account and balanced the one against the other prior to and in the course of a decision referrable to deportation being reached. So far as here relevant the primary consideration is the expectations of the Australian community of which there are two aspects, namely:

the expectation that the community will be protected and not put at risk; and
the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.

In the context of protecting the Australian community the Direction imposes upon the decision maker an obligation to have due regard to:

the need to take action to remove unacceptable levels of risk of crime;
the need to take necessary action to ensure the safety of the more vulnerable members of the community; and
ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders.

Factors relevant to an assessment of the level of risk to the community and the need for its protection are:

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

Manslaughter, a form of violence against a person, is specified in the Direction as an offence which is considered to be very serious. The sentence imposed for the crime is an indication also of the seriousness of the offender's conduct against the community.
A person's previous general conduct and total criminal history are highly relevant to assessing risks of recidivism. Factors to be taken into consideration are the commission of a further offence after warning about the risk deportation, the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
In light of the nature of the offence committed by the Applicant and the surrounding circumstances, the deterrence aspect is not of great significance. Indeed it was submitted on behalf of the Applicant that:
"The manslaughter offence was not a calculated act. It was brought about through a series of unfortunate circumstances, which resulted in the death of a person. Whilst the offence highlights the danger of knives in the community, the knife was in fact a small Swiss army style pocket-knife described by the Court as 'not a particularly dangerous object of its kind'. Deporting the applicant [the visa holder] will not stop people carrying such knives or the possibility that, when confronted and attacked in the dark, a person who has such a knife in their possession might use it."

The Tribunal sees merit in these observations.

There is a community expectation, a trust, that non-citizen residents will obey the laws of Australia. Where there has been a betrayal of this trust and a potential deportee has been convicted of an offence it may, according to the Direction:
'… be appropriate "to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences."

When considering deportation, matters other than the above, even be they not primary considerations, are relevant. They are to be taken into account but given less weight than the primary considerations. These matters include:

the degree of hardship which may be suffered by the potential deportee including, while it is less likely that potential deportees who have spent the greater portion of their formative years in Australia will be deported it is not the Government's intention that such people will never be deported, the degree and extent of the potential deportee's ties with the likely country of return and the strength of other family, social or business ties in Australia; and
the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose bests interests are a primary consideration) including the affect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them and the views (if any) of the victim or victims of the crimes committed by the potential deportee.

SELF EDUCATION AND ADVANCEMENT OF THE APPLICANT:

The effort made by the Applicant to adjust and adapt to the Australian community prior to his arrest was very limited. He was 14 years of age when he first arrived and whilst initially being placed in school and in an intensive English class, by the time of his committing the offences he had lapsed into a pattern of avoiding formal education, abandoning the guidance of his father, using marijuana and associating with young people of similar habits to his own. The latter, whilst objectively undesirable, is understandable.
Material tendered to the Tribunal indicates that from early in his incarceration the Applicant has sought to take advantage of the opportunities there afforded to him. He enrolled in Girrakool Education and Training Unit studying visual arts, in which he excelled, and presently intends to proceed to his School Certificate and possibly further. Arrangements have been made for his enrolment at Campbelltown TAFE. The Applicant registered in the Duke of Edinburgh's Award Scheme, completing his bronze medallion. The reports that are in evidence exhibit a willingness to learn, an enthusiasm to maintain a course of study and an ability to achieve favourable results. The comment in one report to the effect that the Applicant:
"… is a pleasant young man who displays a high level of cooperation. He sets an example for other students by his application to his work." (T28, p167)

is typical of others.

Recently the Applicant has volunteered and qualified to be part of a community based program assisting children with disabilities during hydrotherapy sessions. The Parramatta Correctional Centre report states that he has worked in the program, and:
"… has been an excellent worker and communicates well with both inmates and correctional staff. He is always polite and is a helpful operator. (Exhibit G)
… has worked hard for 16 hours a day with minimal supervision and has been found to be a good character and very high work ethics." (Exhibit H)

RECIDIVISM:

At the time of sentence the court was of the view that the Applicant's rehabilitation was "well underway and that he was unlikely to re-offend". This observation was noted by the Court of Criminal Appeal and no doubt taken into account in its reduction of the sentence.
involvement in altercations:
The Case Officer, Criminal Deportation Section, Bankstown Office of the Respondent, in a report prepared for the consideration of the delegate with reference to recidivism made mention of two altercations in which the Applicant had been involved at Mount Penang Juvenile Justice Centre, stating that he was exonerated from one and was the instigator of the other "which was quite vicious and viewed as serious". The Applicant, it was said, was transferred on account of this happening to a higher security unit and since that time he had accepted his transfer and had shown compliant and cooperative behaviour.
In assessing recidivism it is relevant to consider whether the Applicant is likely to engage in any form of criminal behaviour sufficiently serious to ground a deportation order (Whittaker v Minister for Immigration and Multicultural Affairs [2000] AATA 425). It may also be relevant in this context to consider the general behaviour of a prospective deportee as that behaviour may indicate a propensity to re-engage in serious criminal behaviour.
The Respondent in the present proceedings relies upon four incidents that have occurred during the period in which the Applicant has been incarcerated as well as his using drugs or being seen to be using drugs on two occasions. The Respondent contends that the involvement of the Applicant in unacceptable conduct illustrates a propensity for recidivism. It is necessary to look at each of these incidents.
On 26 April 1999 a report "of minor misbehaviour" of the Department of Juvenile Justice states that during an altercation between two detainees the Applicant:
"… decided to join in. As a result of the pushing & punching a staff member was pushed into a window cutting his arm." (Exhibit 1, p19)

For his participation in this activity the Applicant was punished with six hours confinement. The Applicant stated before the Tribunal that this incident involved "a bit of racist" with Asians, "white boys" and Aboriginals being involved. He stated that the guards were standing apart just observing what was taking place. The Applicant said that in fact he did not want to fight and that he was hit, he denies punching or kicking a staff member.

On 24 July 1999 the Department records state that the Applicant kicked another detainee whilst that person was still on the ground. The report states: "This was very vicious and also unprovoked." (Exhibit 1, p13). The author of the report also states that he "did not hear the words exchanged". The event was dealt with as a minor misdemeanour, the person not wanting the Applicant or any other detainee charged. In his evidence the Applicant stated that the person on the ground, "a young guy", was swearing at him and that he got upset and kicked and hit that person. He said that he could not "handle what he was saying, it was racist and the other boys were laughing at me". The person on the ground was talking about the Applicant's family and about the colour of the Applicant's skin. He only hit the person and kicked him once. The Applicant admits that he lost his temper.
Under date 17 October 1999 a departmental report refers to the Applicant refusing an officer's instructions, ignoring an officer and being aggressive and abusive. The Applicant said that the particular officer is one that he now regards as "really a nice lady" but at the time he was angry with her and she with him. He admits that it was the "wrong time, place and person" and that he "swore at her in a loud voice". He further admits that he "jumped in too soon".
On 28 January 2000 the Applicant had an altercation with another detainee which involved an exchange of punches. The Applicant was punished with seven days additional duties, with a notation made to the effect that he "fought back for own protection". The Applicant says that he was hit by the detainee and he hit him back. He experienced a cut in his mouth. He said that he could "not just walk away. I tried to talk to him. I was just defending myself".
There is also evidence that in August and December 1999, the Applicant used marijuana and whilst having no recollection of the first occasion reported by the department, says that in December a fellow detainee offered it to him, a group were smoking and "I was just there".
On behalf of the Applicant, it was submitted that the events just detailed were not of such a nature as to indicate a relevant propensity on the part of the Applicant to re-offend. The relevant questions to be asked are as to the need to protect the Australian community and what level of risk of harm there is to the community. That is, what is the risk and what is the type of harm. If the risk and the harm are not great, then there is little to put in balance.
assessments:
Of greater assistance to the Tribunal in arriving at a finding as to the likelihood or otherwise of the Applicant re-offending is the assessment made of him firstly by members of his family and, secondly, by professional persons.
family members:
Mr Charles Paek, the Applicant's father, in the course of an interview had by him with an officer of the Respondent on 17 November 1999 stated:
"He (Simon) has changed a lot from the boy he was. He wants desperately to be accepted by us & wants to do want (sic) we tell him, so that we will accept him back into the family.
I (father) see him every week & we talk, he knows he did wrong, he is getting older & has noticed & understands that his cousin & other relatives have been good, he can now see the difference between the way he was & the way others are (for eg. his relatives). He is learning by example.
He is a good painter & he likes sports especially Soccer." (T28, p115)

In his sworn statement the father continued by saying:

"I have noticed a great change in Simon since he was imprisoned. He has stopped smoking, he is interested in sport and art. Since he has been in prison he has learnt to swim and play soccer and has taken up painting. He is very good at it and people have even offered to buy his paintings. He tells us often that when he gets out he wants to complete his study and to get a job. He asks me often about my health and I feel that we have grown much closer over the years. Simon has matured a lot over the time that he has been in prison. I believe that he has changed for the better and that he has learnt a very painful but valuable lesson. I am absolutely confident that he will not re-offend in the future and that his future is bright." (T28, p197)

In his oral evidence Mr Paek said that when he first brought his sons to Australia he wanted them to conform to his ideal but that now he is of the view that they should be allowed to maximise their own potential. He wants to assist the Applicant in his study, in his enrolment at Campbelltown TAFE, will support him and provide him with accommodation. We are very "close now" he says and sees the Applicant as now "trying to be the son that I want him to be".

Mrs Paek, the Applicant's stepmother, said that:
"Over the years that Simon has been in prison we have been to visit him week, sometimes twice a week. Over that time I have noticed a lot of changes in him. He is more mature and listens when you speak to him – in the sense that he wants to listen not just that he has to listen. He is obviously deeply ashamed about what he has done and has told me many times of his sorrow for the grief he has caused the victim's family and us. He told me for many months that he could not sleep and that he had nightmares about the fact that he had killed someone. He always looked tired and it was obvious he was not sleeping. I think over time he is learning to live with what he has done although it still obviously weighs heavily on him.
I believe that Simon has learnt a very hard and difficult lesson and that such a thing will never occur again." (T28, p191)

Mrs Paek says that she also wants the Applicant to finish his study and, if possible, attempt the Higher School Certificate. He is to live with her and study at the TAFE College. "We will support him" she says and he will have the assistance of his family.
Miss Wong, the sister of Mrs Paek, also noticed many changes in the Applicant whilst he had been in prison:
"In particular he appeared to become calmer and to understand that he had made a number of mistakes in his life and not take the opportunities that were presented to him. He has spoken to me many times about what happened and how it has affected his life. He has spoken of his desire to get on with his life and to return to his studies and his new love of painting. I have seen Simon mature and grow into a sensible and caring human being and I have absolutely no doubt that he will not offend again after he is released.
… If Simon is allowed to stay in Australia I will offer him all the support and love that I can give him and will do everything to ensure that he completes his studies and stays out of trouble." (T28, p186)

professional persons:

Mention has already been made of the view taken by the court and the assessment then made of the likelihood of the Applicant re-offending. The Case Officer in the abovementioned Criminal Deportation Report saw the Applicant's risk of recidivism as being low. Dr Westmore, a consulting psychiatrist, in his report of 9 October 1998 stated that:
"I asked him about the offending behaviour, in particular the death of the victim in this matter. He responded by stating 'My feelings (are) the same ever since I come to jail. I wake in the night, sweats, worry, always nervous and worried. I feel terrible about what happened, my feelings for him, the boy who died, he wasn't himself and I guess at the time I wasn't myself. I feel terribly sorry for what I have done but it wasn't my intention to cause what I have done.'
He continued 'I go to church and I pray, I ask God to forgive me for what I have done, for the mistakes I have made. I feel terrible sorry for both families.' He became visibly distressed at this point. He continued stating 'I've been feeling like this for a long time, it hasn't changed.'" (T28, p154)

Dr Westmore concluded that the Applicant:

"… does not present as being a man who is habitually violent or, indeed, who has a particularly aggressive nature. His actions in this event appear to have been reactive predominantly but, tragically, his behaviour led to the death of another person. He has what I believe to be genuine feelings of regret and remorse for his actions, these feelings are not only for himself but certainly extend to the victim's family and to Mr Paek's own family.
His risk of returning before the courts on a similar matter is in my view negligible." (T28, p155)

In her report of 24 August 1999, Ms Janet Mulholland, a psychologist, stated:
"Simon is a thoughtful, mature young man. From his middle-childhood to early adolescent years Simon's background describes a life of deprivation, loss, and insecurity. Simon acknowledges his emotional pain from this time and developed a strong sense of responsibility for his younger brother throughout this period. Simon does not have a history of violence or criminal activity. The violence of his offence and the violence which he observed and experienced in the adult system is abhorrent to him; he is deeply remorseful of his offence.
Simon is not a management problem. He is applying himself to his studies, is keen to achieve his Bronze Medallion in the Duke of Edinburgh Award Scheme and then to start working his Silver Medallion. Simon's teachers here and at Kariong speak highly of Simon, and the staff in Walpole unit report he is very polite and compliant with all aspects of the Walpole program. In his leisure time Simon plays sport and paints, he is a talented artist.
Simon is not considered a risk to the community. Both his Juvenile Justice background report and his pre-sentence report by the Probation and Parole Service recommended Simon be granted community-based options in sentencing. I agree with these previous assessments re community risk. Simon would benefit from day leave and I support his application. (T28, p177)

In a more recent report of 20 December 1999, Ms Mulholland, whilst endorsing her earlier observations, notes that:
"Simon has very good family support and his plan to return to TAFE and continue his education is sensible. Simon is a good candidate for parole at this time. Should Simon be granted parole, it is recommended that he seek counselling in the community if his trauma symptoms are problematic for him." (Exhibit E)

In her Psychosocial Assessment Report, Ms Sunny Hong, Family Therapist, states that the Applicant:
"… presented to me as a young man who is genuinely regretting many of his past lifestyle and actions. He seemed sincere and genuine in his feeling of remorse for his criminal behaviour and seemed to be just as shocked and mortified by his own action, which he had no plans to commit. It seems that he has been suffering from many of symptoms consistent with Post Traumatic Stress Disorder since the day of crime as he described recurring thoughts and images, flashbacks, avoidance of any relevance cues, insomnia and nightmares. It is my professional opinion that Simon has suffered these symptoms resulting from shock and realisation of seriousness of his own action.
… It appears that Simon turned to use of cannabis and accompany of other youngsters in similar situations to avoid the stresses of life events. Simon stated himself that he was unlike his younger brother in that he turned to drugs and nightclubs to not think about the difficult issues in life. However, since 19 months of incarceration, Simon seems to have rehabilitated himself in a significant way. I fully support his application of appeal to be released at an early date to firstly avoid any further institutionalisation and secondly to enhance his rehabilitation in the community. (T28, p183)

Finally, in the assessment process, Associate Professor and Head Department of Behavioural Sciences in Medicine, University of Sydney, Dr Susan Hayes, prepared a Clinical Psychological Assessment of the Applicant dated 2 June 2000. After detailing the background, family and social history, present situation and personality assessment inventory, Dr Hayes stated in relation to the various events that are above detailed and that had occurred whilst the Applicant was at Mount Penang, that they were average in terms of aggression. She found the Applicant to be severely depressed, anxious and agitated and likely to have frequent thoughts about suicide. He "appears to be coping with his depression and anxiety by working most of the time". Dr Hayes diagnosed the Applicant as suffering from Post Traumatic Stress Disorder. She noted that he held a fairly responsible position at the Parramatta Correction Centre where he is presently in charge of the stores and effectively in charge of the Reception Room. The Post Traumatic Stress Disorder symptoms:
"… are associated with the physical and sexual abuse which Mr Paek suffered while in an orphanage in Korea and also associated with flashbacks to the fight in which the victim was stabbed.
…
I explored the issue of remorse with Mr Paek. My clinical assessment of him is that he is genuinely remorseful for what happened. He said that he never wanted it to happen. He knows that the person died because of him and he cannot forgive himself. He referred to seeing the victim's family in the court and the mother was crying. He said that this made him feel terrible. Mr Paek stated that 'all he can say is that he is sorry'. If he could, he would return to the situation and say to the victim not to lay in wait for him, or he would not go to the location where the fight took place. He says that he wishes he could change what happened. Mr Paek says that as a result of the killing, he is going to try his best to lead his life to help other people, to do good things and to make people happy. He reiterates that he did not intend to kill the victim." (Exhibit L, p5)

Dr Hayes continued in her report by saying:

"The likely effects of deportation back to Korea for Mr Paek are negative. Mr Paek informed me that he had no idea what would happen to him if he returned to Korea. He says that he has no significant family links there. He thinks that he will end up on the street as a 'rubbish person'. He also thinks that his family would suffer. His family have been very supportive of him and have apparently sold their house in order to assist with his legal costs and Mr Paek has rediscovered a good relationship with his father. He also wants to help his younger brother. Furthermore, Mr Paek will need counselling to help him to deal with the Post Traumatic Stress Order attendant upon the offence and upon the physical and sexual abuse which he suffered in the orphanage in Korea. It is unlikely that he would be able to access appropriate counselling in Korea.
Mr Paek says that he wants to stay in Australia so that he can finish a course in art and undertake work in pottery, ceramics and woodwork. He says that he has already advanced significantly in his artistic pursuits and at one stage donated a painting to the Gosford Hospital."

In summary, Dr Hayes is of the clinical opinion that the Applicant is highly unlikely to re-offend and in particular it is highly unlikely that he will re-offend in terms of violent or aggressive behaviour towards another person:

"He is at present a quiet, rather depressed young man who uses work in order to overcome his depression and stress. He has ambitions for the future in terms of an artistic career. He presently holds down a full-time job in the gaol and works long hours. He does not have any features of psychotic behaviour or psychological abnormality, which would contribute to the likelihood of re-offending. His only psychological diagnosis is that of Post Traumatic Stress Disorder."

As abovementioned, Dr Hayes did not see the Applicant experiencing any serious psychiatric illness. She did not see him as presently having a drug problem, is of the view that he is not more aggressive than anyone else in society and was of the view that he is not going to be a danger to the Australian community. Though she had not been aware of the incidents that took place at Mount Penang and the two occasions when he used marijuana, she did not consider that they were significant as to the Applicant's future likelihood of re-offending. She was of the view that the Applicant is a young man who has changed quite noticeably over the last five years and that in terms of aggression, his conduct and behaviour are now no more than that of others in the community. He is highly unlikely to re-offend.
The Tribunal agrees with the assessment made by Dr Hayes as to the likelihood of the Applicant re-offending. There is not a likelihood. The Tribunal also agrees with the conclusion reached by Dr Hayes so far as the incidents at Mount Penang are concerned. As she put it, they were indicative of minor misbehaviour and average with the young men who were there detained. They are not indicative of a propensity to commit offences or engage in acts of criminality.
HARDSHIP WHICH MAY BE SUFFERED BY THE APPLICANT IF HE SHOULD BE DEPORTED:
The Respondent's Case Officer observed in her report upon which the decision to issue the Deportation Order was largely based:
"At interview Mr Paek stated that he has lost contact with his natural mother and has not spoken or seen her for about 10 years. He has an aunt in South Korea who raised him and while he keeps in touch with her, she has her own family and is now too old to assist him with resettlement. He stated that the lifestyle is difficult in South Korea.
Mr Paek also stated, that at first he found it hard to settle in Australia because of the language and everything was new to him, however he now considers himself 50 percent Australia. All his family are in Australia, he migrated to Australia to join them and his father, and although prior to his sentencing he argued with his parents a lot, he now talks with his father and step mother with whom he has a close relationship and who visit and phone him regularly.
Another relevant factor is the psychological evidence supplied by the Juvenile authorities which indicates that Mr Paek suffers from Post Traumatic Stress Disorder, as such, it maybe that medical services of the nature required by Mr Paek are either not available or not of the same standard as available in Australia.
It is submitted that Mr Paek would suffer a significant degree of emotional hardship if he were deported from Australia." (T28 p71-72)

Mention has already been made of the view expressed by Dr Susan Hayes as to the hardship that would be experienced by the Applicant if he should be deported to South Korea. The Applicant himself said that he wants to be allowed to stay in Australia in order that he might finish his course, live with his father and be involved with his family. The relationship between himself and his father is much better than it was and he is very appreciative of the support that he has received from his family and especially his father and stepmother. He also wants to be involved with the activities of his brother.
It is true to say, as did the Case Officer, that the Applicant will experience hardship if returned to Korea. He has been in Australia since he was 14, now is fluent in the English language (he gave his evidence without the assistance of an interpreter) and is firmly entrenched in his studies and is resolved in his life pattern. Even be it, as mentioned later in these reasons, he has some family in Korea, his support family is in Australia. Mention has already been made of the Post Traumatic Stress Disorder identified by Dr Hayes and others and the likelihood of his not receiving support for this condition in Korea.
HARDSHIP TO ANY AUSTRALIAN CITIZEN OR PERMANENT RESIDENT INCLUDING THE APPLICANT'S FAMILY:
The Applicant's father stated he had lost touch with his sons, following separation and his moving to Australia, on account of his ex-wife moving away from her earlier home and placing the children in an orphanage. He returned to South Korea, located the young boys in 1992 and, when he found them, brought them to Australia to live. If the Applicant were to be deported Mr Charles Paek stated "I would just die". The family could not follow him because they are Australian citizens. In detailing his attitude to deportation when being interviewed by an officer of the Respondent, Mr Charles Paek stated:
"Not fair to deport him when we (family) will be in Australia & we are Australian citizens, while he is living in Korea without a future. If he were deported I would just die. If Simon is deported we cannot follow him to Korea we are Australian citizens. His life in Korea was not a good one, because my ex wife (his mother) left him when he was a small child to be raised by others. He was raised in an orphanage & by his aunty. I had lost touch with my son because my ex wife moved away. I found him again in '92 & brought him to Australia in '93. At first Simon couldn't cope in Australia because he couldn't speak English, but then he started going to school & then something happened. We don't know what because Shirley [the Applicant's stepmother] works 6 days a week & I was often overseas on business. We didn't know his friends. When I was not overseas, Simon was home.
When he is released, Simon will live with us & he will continue school. I plan to sell my factory in China & open a business in Sydney, so I will not have to be away from home anymore & I can keep my eyes on Simon.
If he is given other chance (that is, if he can remain in Australia) he will try hard & we his family will try to help him." (T28, p114)

In his sworn evidence before the Tribunal Mr Charles Paek stated:
"In addition to support that my wife and I can offer there are other members of the family who want to help him. His cousin Michael is particularly close to him and wants to help him succeed when he gets out. Michael is married and he and his wife go to visit Simon often. His Aunts Yoke Choy Wong and Chung Ja Paek are also close to him and want to help him in any way they can. When Simon is released he will be surrounded by a loving and caring family."

Further, Mr Charles Paek states that he plans to support Simon, that he sold his home for Simon and can afford to assist him. He did acknowledge that he would also support Simon if he should be in Korea, even be it that it would be heartbreaking for him if this should occur. Mrs Paek and Miss Wong, in their sworn testimony, also speak of the Applicant having a family in Australia that loves him and wants to support and help him, even be it that "he did a terrible thing" and they feel sorry for the parents of the boy who died.

It is apparent from the evidence, which the Tribunal accepts, that the Applicant does have the support of his immediate family and his extended family living in Australia. The Tribunal also accepts that if the Applicant should be deported that hardship would be experienced by these people.
RELATIVES OF THE APPLICANT IN AUSTRALIA AND KOREA:
Mention has earlier been made of the family of the Applicant residing in Australia. They comprise his father, his stepmother, his brother, two uncles and aunts together with their children. He also has, living in this country, his grandmother. The relationship Mr Charles Paek has with his two brothers is "not good", this seemingly on account of their lack of interest in and concern for the grandmother. It was partly on account of Mr Charles Paek's concern for his mother and her welfare that he first came to Australia.
In Korea, the Applicant has the aunt with whom he lived as a child and her three adult children, an uncle and his children. The Applicant has had little contact seemingly with these relatives since he came to Australia.
Mr Charles Paek, by reason of his business contacts and otherwise, has "many many friends" in Korea and he maintains a good relationship with them. He regards it as important to maintain personal contact with Korea.
The Applicant thus has a significant family group living in Australia and a family group, but a less significant one, living in Korea.
IMPACT ON RELATIVES OF THE VICTIM:
The Tribunal is minded of the impact that the death of their son had upon Mr and Mrs Morcos and the anguish and sorrow experienced by the boy's sisters. It is not necessary in these reasons to reiterate the feelings documented in the statements contained in the material before the Tribunal. It is relevant to note that the Applicant was and is very aware of this consequence of his unfortunate conduct.
SUBMISSIONS AND DECISION:
The Respondent primarily submits that the Applicant's offence is such that the Australian community would expect that he be deported from this country. The Minister's Direction does not create an obligation on a delegate or the Tribunal to order deportation in the case of every "abhorrent crime" but this consideration is primary and is put at the highest level of concern for the community expects that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community "irrespective of all other considerations, unless these are outweighed in the balance by other primary and secondary considerations" (Whittaker, supra, para 38).
The offence committed by the Applicant has been earlier described; it was indeed very serious. However, as noted by the Sentencing Judge and the Court of Criminal Appeal, it was at the lower end of the offence of manslaughter and indeed the reduction in sentence by the Appeal Court is indicative of that court so regarding it. The Tribunal is very much aware of the circumstances in which the offence was committed, the lack of intent on the part of the Applicant to commit the offence and the fact that it was he who was initially the victim of aggression. Taking these matters into account, the offence and the commission of it, while serious and to be very much regretted, cannot be classified as abhorrent that is such as to warrant, in the absence of other relevant considerations, a person being deported from Australia.
The Tribunal accepts that the Applicant has suffered great remorse and feelings of guilt on account of his criminal activity, the impact it had on the family of the victim and the shame it brought to his own family. He does genuinely want to do "the right thing" and change his form of past behaviour (T28, p181). On behalf of the Applicant, Mr Kessels submitted that the Tribunal should not find the offence so abhorrent as to outweigh all other considerations. In detailing the various reports as to the likelihood or otherwise of the Applicant re-offending it was submitted that they all, even those tendered at the time of sentence, indicate a change taking place in the psychology of the Applicant, his appreciation of what his life should be and the direction it should take. All of the reports are positive as to the likelihood of recidivism being low. His rehabilitation, it was put, is well on the way and the incidents referred to in the misbehaviour reports are not indicative of any regression in this regard. It was submitted that whilst admitting the need in a general sense to protect the Australian community that there is minimal if any risk of harm in the event of the Applicant becoming again a free member of that community. There is not an element of risk to be put in the balance. The Applicant was only 17 when he committed the offences, after having arrived in Australia at the age of 14, struggling with educational institutions and experiencing trouble and disputation at home with his father. He was a rebellious teenager and daily user of marijuana but he had not set out to cause the victim any harm, being set upon in the dark without warning. The Applicant's prospects for complete rehabilitation are, it was submitted, extremely high and his likelihood of making a positive contribution to the Australian community, if he is not deported, apparent.
The Respondent contends that the relevant primary consideration, the expectations of the Australian community, entails the expectation that the community will be protected and not put at risk and that non-citizens who commit and are convicted of crimes abhorrent to the community will be removed from Australia. In considering protection of the community, it is necessary to have regard to the seriousness and nature of the crime, the risk of recidivism and the likelihood that deportation of the Applicant will be likely to prevent or discourage similar offences by others.
The Tribunal, having considered all of the evidence, is satisfied that whilst the offence was serious the risk of recidivism is very low. Having in mind the circumstances in which this particular offence occurred and the instrument used, deportation would be unlikely to prevent or discourage similar offences by others. The offence committed by the Applicant was very serious within the meaning of the Direction. However, viewed objectively it was not abhorrent. In these circumstances, the Tribunal does not expect, nor would the community expect, that the Applicant, having committed and been convicted of the relevant crime would by reason thereof alone be removed from Australia. Its abhorrence is in its description as "manslaughter" but, when viewed in all the circumstances of its occurrence, its subjective nature can be better appreciated.
It is true, as was submitted on behalf of the Respondent, that the Applicant's remorse in respect of his crime does not of itself negate the risk of recidivism. The Tribunal, however, agrees with the conclusions reached by Dr Hayes in that, even be it the Applicant was involved in various altercations and drug abuse whilst serving his sentence at Mount Penang Juvenile Justice Centre, this does not evidence a recent history of repeated violence. Nor does it accept that he is involved in drug abuse, be it he used drugs on two occasions. The Tribunal does not see the Applicant as constituting a continuing and future risk to the community and accepts that a behavioural change has taken place negating any possible risk. The Tribunal does not find that there has been a recurrence of any form of criminal behaviour sufficiently serious to ground a Deportation Order.
With reference to the nature of the offence upon which the Deportation Order was based and it being appropriate to deport the Applicant on this account, the Tribunal does not see the acts comprising the particular offence and its occurrence objectively as being abhorrent to the community and such as to preclude the Applicant from being allowed to remain in it. Whilst the Respondent submitted that although considered to be at the lower end of the scale, the Applicant's crime being manslaughter committed by use of a knife, was considered by the Sentencing Judge and the Court of Appeal as "very serious" the Tribunal does not see it as falling within the meaning of the moral abhorrent as used in the Direction.
The Tribunal has already given attention to the hardship that would be experienced by the Applicant, the ties that he has in Australia and South Korea and the hardship to his family should he be deported from Australia. The Tribunal has carefully placed in balance the primary consideration already discussed, the nature of the offence, the expectation of the community, the likelihood of recidivism and the circumstances surrounding the incidents at Mount Penang and the changes that have occurred in the cultural and social awareness of the Applicant. The Tribunal is mindful of the attention given by the Applicant's father, stepmother, aunt and others to him whilst he has been incarcerated and the lengths to which they have gone to ensure his representation and provide for his future. The Tribunal is satisfied that whilst the crimes committed by the Applicant were of a serious nature, the risk of recidivism is acceptably low. Any risk to the Australian community is also acceptably low. The criminal history of the Applicant is not so abhorrent as to warrant per se his deportation. Deportation would cause the Applicant extreme hardship and cause his family severe hardship. The Applicant has shown extensive and genuine remorse for his acts and genuine attempts at rehabilitation. As such, the factors under the Direction are balanced in the Applicant's favour.

For these reasons and accordingly, the Tribunal sets aside the decision under review.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing  19 & 20 June 2000
Date of Decision  25 August 2000
Solicitor for the Applicant         Mr Ron Kessels, Solicitor & Migration Agent
Solicitor for the Respondent    Ms S Fraser, Australian Government Solicitor