Porter-Ryan and Minister for Immigration and Multicultural Affairs - [2000] AATA 718

DECISION AND REASONS FOR DECISION [2000] AATA 718

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/417

GENERAL ADMINISTRATIVE DIVISION       )
          Re      DAMON CRAIG PORTER-RYAN
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date18 August 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant DAMON CRAIG PORTER-RYAN be allowed to remain in Australia.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – seriousness of the crime – risk of recidivism – suitability of a warning.
Migration Act 1958 sec 200

REASONS FOR DECISION

18 August 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision made on 2 May 2000 by a Delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant, Damon Craig Porter-Ryan, under Section 200 of the Migration Act 1958.
The matter was heard before me in Brisbane on 31 July 2000. The applicant represented himself and Mr E Howell of the Australian Government Solicitor's Office represented the respondent.
Oral evidence was given by the applicant; Mr Frank Baytieh, an Islamic Minister; and Ms Peta Sumpton, the applicant's partner. The following documents were placed into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Mr Porter-Ryan's Proofs of Evidence
Exhibit 3 Dossier of Documents tendered by Mr Porter-Ryan
Exhibit 4 Copy of Corrective Services File
Exhibit 5 Statement of Peta Ann Sumpton

The applicant is 25 years of age and a New Zealand citizen. He immigrated to Australia in 1996 at the age of 21 years. Within a month of arriving he had established himself with a permanent residence and employment as a service station attendant. In 1997 he was the victim of a hold-up, having a 30 cm knife held to his throat. Within six months he was held up again, this time with a syringe. Despite his complaints to management, there was no security upgrade to the store and he did not receive any trauma counselling.
In June 1998 the applicant organised with his flatmate to stage a hold-up at the service station while he was working there. The applicant's evidence was that he wanted to "get back" at his employer and highlight again the need for better security. No-one was injured in the staged hold-up, but $1,000 was taken. It is this offence, together with the applicant's attempts to claim workers compensation for stress caused by the staged hold-up, which forms the basis for this deportation order. The applicant was convicted on 5 January 2000 and sentenced to two years imprisonment, to be suspended after nine months for a period of three years. It is this conviction and sentence which brought the applicant within the ambit of Section 200 of the Migration Act.
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 interests. The latter consideration does not apply in this case.
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. The theft in 1998 and the subsequent seeking of compensation are the only entries on the applicant's criminal history. The respondent submitted that these crimes fell within the very serious category of offences. While the staging of a crime and the wasting of Police resources are serious matters, the theft involved is on the lower end of the scale and no violence was perpetrated on members of the community. While it is true that the applicant applied the proceeds of the robbery to his own personal use, the Tribunal accepts that this was an afterthought once the money was in his possession. It was not the motivating factor behind the staging of the hold-up. As such, the crimes are of moderate seriousness.
The second consideration in relation to the protection of the Australian community is the risk of recidivism applicable to the applicant. The applicant has no other offences on his criminal history. He is a part of a supportive ongoing relationship and has offers of employment if he remains in Australia. He has a clean prison record and is described as quiet and well-behaved by prison authorities. He is currently undertaking the WORC programme and is receiving good reports. The Corrective Services Psychologist who reviewed Mr Porter-Ryan assessed him as having a low risk of recidivism.
The respondent pointed to the fact that the applicant left the Gold Coast, relocated to Brisbane and changed his name shortly after the offence, as evidence of an attempt to evade justice. The respondent submitted that this would leave it open for the Tribunal to find that the risk of recidivism was relatively high. The applicant explained that he had changed his name by deed poll and that the name change was correctly notified to the relevant authorities and was in no way an attempt to evade the law. He explained that new flatmates had moved in with him in late 1997 and that they had begun using drugs at the house. The applicant opposes drug usage and was no longer comfortable living at the house. He decided to make a clean break and relocate to Brisbane. He changed his name so that his flatmates would not be able to locate him. The respondent also suggested that Mr Porter-Ryan's lack of complete frankness with associates and friends as to his involvement in the commission of the offence was further evidence of dishonesty on the applicant's behalf and increased the risk of recidivism.
It is the Tribunal's finding that the risk of recidivism in this case can be assessed as low. On the whole, the Tribunal finds that this is a mere aberration in the applicant's life and that his lack of frankness about the matter is merely evidence of a naïve young man making a mistake which landed him in more trouble than he knew how to deal with. The term of imprisonment and these proceedings have made the applicant very aware of just how seriously the Australian community regards criminal conduct and served as a stern warning to him. 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. Given the circumstances of this case, it is not one in which this consideration carries much weight.
The Australian community does expect to be protected from abhorrent crimes and that non-citizens who are convicted of such will be removed from Australia. While the applicant may have acted quite foolishly in committing this offence, it does not fall within the category of abhorrent and the expectations of the Australian community do not preclude the applicant being permitted to remain in Australia. As such, the primary considerations are balanced in the applicant's favour.
The second consideration includes the degree of hardship suffered by the applicant and by the Australian citizens and permanent residents if the deportation occurs.
If the applicant were to be deported, he does have family in New Zealand. Although he says he is independent of them and would not want to rely on them for help, if he had to, there was no evidence to say they would refuse him assistance. He lived in New Zealand until he was 21 years of age, he has a good work record there and, as he demonstrated after arriving in Australia, he has the ability to establish himself fairly quickly in new surroundings.
If he is deported there is a chance that he would lose his relationship with Ms Sumpton and he would lose the opportunity of ever returning to Australia, the place he has been happy to call home for the past four years. As such, the applicant would suffer some hardship if he were deported, but it would be marginal.
Ms Sumpton has said that if the applicant were deported she would follow him to New Zealand. If she does, she would potentially lose, but definitely weaken, her close ties with her family. She would also have to re-establish herself in a new country. If she changes her mind and remains in Australia, she would lose her relationship with Mr Porter-Ryan. Consequently, she would suffer some hardship either way. Therefore, the secondary considerations add some weight to the applicant's case, albeit marginal.
On the whole, this is clearly a case where a warning would have been very appropriate, but actual deportation is excessive. The risk of recidivism is clearly low, with these offences being a mere aberration on Mr Porter-Ryan's otherwise clean record. It is an aberration he will carry with him for the rest of his life and these proceedings have served as a very clear warning that any untoward conduct on his behalf in the future would see him removed from this country forever.
It is the Tribunal's view that the applicant should be given a second and final chance. The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant be allowed to remain in Australia.
I certify that the 19 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  31.7.00
Date of Decision  18.8.00
Rep. for the Applicant              Applicant appeared in person
Counsel for the Respondent    Mr E Howell, Australian Government Solicitor's Office