Re Agafili and Minister for Immigration and Multicultural Affairs

DECISION AND REASONS FOR DECISION [2001] AATA 91

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1742

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FAINUU AGAFILI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date09 February 2001
PlaceSydney

Decision      The decision under review is affirmed.
  (signed)
  ..............................................
  Dr D. Chappell
  Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – deportation – review of deportation order – remittal from Federal Court – applicant born in Western Samoa – applicant citizen of New Zealand – conviction for sexual offences – seriousness and nature of the crime – risk of recidivism – protection of the Australian community – expectation of the Australian community that non-citizens who commit crimes that are abhorrent to the Australian community will be removed from Australia – best interest of the applicant's three children – hardship to the applicant – hardship to the applicant's wife – grounds of hardship not sufficient to outweigh considerations of protecting the Australian community.

Migration Act 1958 – ss 200, 500 (1)(a)

Afaoa v Minister for Immigration and Multicultural Affairs (1999) AATA 82
Deng v Minister for Immigration and Multicultural Affairs (1999) AATA 386
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238

REASONS FOR DECISION

09 February 2001 Dr D. Chappell, Deputy President

BACKGROUND
Application

Mr Fainuu Agafili (the applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s200 of the Migration Act 1958 (the Act), to deport him from Australia. Section 500(1)(a) of the Act grants jurisdiction to the Tribunal to conduct such a review.
Mr Ray Turner, solicitor, represented to Mr Agafili on a pro bono basis at the hearing. Mr Agafili also appeared in person and gave personal testimony to the Tribunal as did the following witnesses on his behalf:
Mrs Temukisa Agafili
Mr Mark Blows
Mr Graham Rendell
Mr Nathan Cureton and then Ms Juanita Capel, both departmental advocates, represented the respondent at the hearing. Mr Gerard Webster gave evidence on behalf of the respondent.
The Tribunal had before it documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975 (T documents). The following exhibits were also received into evidence on behalf of the applicant and respondent:
Exhibit No.     Description    Date
A1      Psychological report by Mr Mark Blows   23/6/1999
A2      Psychological report by Mr Graham Rendell and Mr Seyed Hosseini-Pour 20/12/1999
A3      Respondent's Statement of Facts and Contentions     9/3/1998
A4      Letter from Ms Tracy Ballantyne, DIMA, to Mr Gerard Webster         6/4/1998
A5      Criteria for Substance Dependence, DSM IV pp181-183
A6      Excerpts from Multiphasic Sex Inventory Profile relating to Mr Agafili
A7      Decision of DP P. Gerber N1997/100 and covering letter from Rachel McGrath-Herr, DIMA           27/7/1998
R1      Update report of Mr Gerard Webster, psychologist      15/7/1999

Referral by Federal Court

By consent this matter was remitted by the Federal Court to the Tribunal for reconsideration on 06 November 1998 (Federal Court Application No. NG804/98). While no published reasons were provided by the Federal Court for this remittal it was made because of an unspecified error of law committed by the Tribunal at an earlier hearing of this matter (see transcript 20 July 1999: 2-3). The transcript of this earlier hearing, conducted before Gerber DP in May 1998, was included among the documentary evidence before the Tribunal (T 27), as was the decision handed down by Gerber DP following that hearing (A7). Mr Agafili was not represented by a lawyer at the earlier hearing.
Chronology of Events
The following general facts and chronology of events which have led to the present proceedings were not matters of dispute between the parties. Mr Agafili was born in Western Samoa on 10 August 1960. He grew up and was educated in that country until 1978 when he left school and moved to New Zealand. In that country he worked in various factories and farms. In 1989 he married his present wife, Mrs Temukisa Agafili in New Zealand. The couple now have three children – a boy aged nine and two girls aged eight and five respectively (see in general T15: 36).
On 12 April 1994 Mr Agafili arrived in Australia (T15: 47-48), followed by his wife and children on 26 April 1994. At the time of his arrival Mr Agafili was a citizen of New Zealand and 33 years of age. He has not left the country since his arrival (T15: 31).
On 21 January 1995 Mr Agafili committed a series of offences which have led to his present consideration for deportation. At the time of the commission of these offences Mr Agafili had accumulated just over nine months of permanent residence in Australia (T15: 31). On 22 May 1995 Mr Agafili pleaded guilty at the District Court of New South Wales in Parramatta to a charge of aggravated sexual assault. On 11 August 1995 Mr Agafili was sentenced by Johnston J to a minimum term of imprisonment for three years and an additional term of two years on this charge. In passing this sentence Johnston J also took into account two further matters – a charge of kidnapping and a charge of aggravated sexual assault (see in general T15: 54-65).
Mr Agafili subsequently appealed against the severity of this sentence, while at the same time the Crown appealed against its leniency. On 1 May 1996 the Crown appeal was allowed by the New South Wales Court of Criminal Appeal. The original sentence was quashed and replaced by a minimum term of six years imprisonment with an additional term of two years (T15: 51-52).
In December 1996 the respondent's officials prepared a report for the Minister's delegate in which they recommended that Mr Agafili should be deported as a result of his criminal offending (T15). That report contained the following assessment:
FACTORS IN FAVOUR OF DEPORTATION
i)Very serious nature of deportable offence
The offence comes within the category of offences classed as serious under Criminal Deportation Policy
This was a particularly horrendous offence with the victim being subjected to six hours of humiliation and sexual abuse. Mr Agafili played the major role in the offence and, according to Judge Johnston, his criminality in the offence was well towards the higher end of the range of this type of offence
Justice Meagher of the Court of Criminal Appeal stated that it was a vicious and brutal assault and considered the initial sentence to be totally inadequate as did his two colleagues sitting on the appeal
Apart from the serious nature of the offence it should also be noted that the offence was committed by Mr Agafili before he had accumulated ten months permanent residence in Australia
Mr Agafili has a minor criminal history in New Zealand but there is a warrant out for his arrest for failure to answer District Court bail and an assault on a female
ii)Negligible contribution to the community
Mr Agafili arrived in Australia on 12 April 1994 and worked for twelve months as a process worker. He has never resorted to unemployment benefits. He committed the deportable offence on 21 January 1995 and has been held in custody continuously since 27 July 1995. He is not due for release until 26 July 2001.
When he is due for release Mr Agafili will have spent seven years and three months in Australia with six years of that time being spent in prison at considerable cost to the Australian taxpayer. Any positive contribution Mr Agafili may have made to the community through his employment is well and truly negated by his lengthy period of imprisonment and its associated cost
(iii) Moderate to high risk of recidivism
Mr Agafili committed the deportable offence within ten months of arrival and is wanted for outstanding matters in New Zealand one of which involves an assault on a female. When he is eligible for release in 2001 he will have spent approximately eighty per cent of his time in Australia in a restrictive prison environment. He has to prove that he can lead a law abiding existence outside this restrictive environment for a lengthy period of time before one could safely conclude he will not re-offend.
Mr Agafili still contends that he is innocent of any sexual abuse of the victim and this must raise doubts as to the issue of genuine contrition on his part
At this point in time the risk of recidivism is assessed as moderate to high and this risk is deemed to be totally unacceptable taking into consideration the heinous nature of the offence
FACTORS AGAINST DEPORTATION
i)Imposition of some degree of hardship on Mrs Agafili
Mrs Agafili has indicated her full support for her husband and is strongly opposed to his deportation. She believes her husband is innocent of the sexual assault and wants him to rejoin the family household upon his release so as to assist in the support of their three children. She has found it particularly difficult to cope in the absence of her husband.
Mrs Agafili does not wish to leave Australia and is unsure whether she would return with her husband to New Zealand if he is ordered deported. If she decides to remain in Australia deportation will effectively terminate the marriage. If she returns to New Zealand with her husband she will not be subjected to undue hardship even though she has forged a closer attachment to Australia by recently taking out Australian citizenship with her two eldest children. All her family reside in Western Samoa and she will still be without family support whether she continues to reside in Australia or decides to return to New Zealand. She resided in New Zealand for five years prior to arriving in Australia and should experience little difficulty in re-adjusting to lifestyle in that country. She will also have the personal support of her husband in New Zealand after his release in 2001 if she decides to return with him.
ii)Imposition of some degree of hardship on children
Following the judgement in Teoh you are required to take into account the best interests of Mr Agafili's three children
The Teoh case addressed the rights of the child under the UN Convention on the Rights of the Child. Australia is a signatory to this Convention and Article 3.1 of the Convention states:
'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'
Whilst Mr Agafili does not present as the ideal role model for his children it would appear to be in their best interests to have him remain in Australia. Their mother is struggling to support them on the supporting parents benefit. Mrs Agafili also lacks family assistance in raising the children as all her family and all her husband's family reside overseas. Mrs Agafili expects her husband to rejoin the family unit after his release and assist in the support of her and the children and Mr Agafili has indicated that this is his intention.
All the children will be of school age when their father is released in 2001. Whilst it will be disruptive and inconvenient for the children if they are forced to attend new schools in New Zealand in 2001 the hardship imposed will not be substantial. As young children they should be able to satisfactorily adjust to a new environment. Apart from the support of their mother they will also have the personal support of their father in making this adjustment
(T15: 42-44)
On 30 December 1996 the Minister's delegate, Mr Mark Anthony Sullivan, accepted this recommendation and ordered Mr Agafili's deportation (T15: 46; T14; T2). On 24 January 1997 Mr Agafili lodged an application with the Tribunal for review of this decision (T1). As already noted, such review did take place and the decision was affirmed by the Tribunal. Subsequently, that decision was overturned by consent and the Federal Court referred the matter back to the Tribunal for reconsideration according to law.
LEGISLATION AND POLICY
Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part II of the Act applies. A non-Australian citizen who has been in Australia for a period of less than 10 years in aggregate, and has been convicted of an offence for which he or she has been sentenced to imprisonment for not less than one year is liable to be deported (s201). It was not a matter of dispute that Mr Agafili's conviction of aggravated sexual assault made him liable to deportation within the provisions of the Act.
When Mr Agafili was convicted of the deportable offences, guidance as to the exercise of the discretion under s200 of the Act was to be found in Australia's Deportation Policy issued by the then Minister on 24 December 1992 (the Policy). The well established approach taken by the Tribunal to that Policy was that, in the absence of any good reason to the contrary, it should be taken into account in deportation proceedings. This was the approach which was adopted by the Tribunal in the hearing of Mr Agafili's case by Gerber DP in May 1998.
On 21 December 1998 the current Minister issued a new General Direction under s499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation Under Section 200 of the Migration Act 1958: General Direction – Criminal Deportation – No.9" (the Policy Direction). This Policy Direction was signed by the Minister on the date of its issue and superseded the previous Policy of 24 December 1992. Given this situation, it was now not a matter of contention between the parties that it was this new Policy Direction which required consideration by the Tribunal in addressing the issues involved in Mr Agafili's case.
As the Tribunal has already indicated in a number of decisions published since the issue of the new Policy Direction it must, as a matter of law, give this document significant weight. A Ministerial Direction under s499 of the Act stands on a very different footing from general statements of policy as to the exercise of administrative discretion, such as the one formerly providing guidance on deportation matters. The nature of this distinction is made apparent in the following passage taken from the Full Federal Court decision in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238:
The locus classicus on the part that government policy may play in merits review remains the joint judgment of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 418-422. Their strictures emphasise the importance of ascertaining, as a threshold question, whether the decision maker is under a statutory duty to regard itself as bound by government policy. In the present case s499(1) of the Act was such a specific statutory provision.
(per Whitlam and Gyles JJ at paragraph 12)
The Full Federal Court in Rokobatini also gave consideration to the way in which the Tribunal should give effect to the new Policy Direction. Whitlam and Gyles JJ in their joint judgment noted that this:
… brings into sharp focus the content of the Policy compared with the Direction. In considering this question, it should be borne in mind that the direction is not simply a list of relevant matters, it describes a process of decision making. The Policy has the same effect. Plainly, the text of each is quite different as, in our opinion, is their effect. The Minister, for example, submits that the Direction is 'tougher' than the Policy. Even if that is so (and it is a matter of debate) that illustrates the fact that it is impossible to equate one process with the other, or to assume that the outcome of following one will be the same as the outcome of following the other.
(paragraph 18)
Like its predecessor, the new Policy Direction makes it clear that the primary purpose of deporting a person from this country is to ensure the safety and welfare of the Australian community, and to exercise a choice on behalf of that community as a whole as to who should be allowed to remain within it (Policy Direction: paragraph 4). The new Policy Direction goes on to provide guidance as to the important factors which should be considered by a decision maker when determining whether or not a person should be deported. Two primary considerations to which a decision maker should have due regard are:
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.
(Policy Direction: paragraph 6)
Both of the primary considerations mentioned in the new Policy Direction have a relevance to Mr Agafili's case. More will be said later about the references contained in the Policy Direction to the best interests of the child or children. But first, attention must be given to the guidance contained in the new Policy Direction concerning the way in which decision-makers should have regard to the expectations of the Australian community as a primary consideration. The Policy Direction states (paragraph 8), in part, that:
There are two aspects to community expectations:
The expectation that the community will be protected and not put at risk; and
the expectation that non-citizens who currently commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia
The Policy Direction also states that three factors are relevant to an assessment of the level of risk to the community and the need for its protection:
The seriousness and nature of the crime;
the risk of recidivism;
the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
(Policy Direction: paragraph 10)
Given the importance and relevance of the three factors which have just been listed, attention is now turned to the evidence before the Tribunal in relation to each. Following this review the evidence concerning the best interests of the children is examined, together with certain other factors which the Policy Direction indicates require consideration by the Tribunal.
EVIDENCE
Seriousness and Nature of the Crime
Court of Criminal Appeal
The most complete description of the circumstances surrounding the commission of the offence committed by Mr Agafili is to be found in the decision of the New South Wales Court of Criminal Appeal which varied the original sentence imposed upon Mr Agafili by Johnston J in the District Court. In his judgment Meagher JA said:
The facts of the matter can be stated very simply. The victim was a young woman of twenty years of age. On Friday, 20 January 1995, she went out for the evening with her friends. Between 1.30 am and 2am the following morning, she left the nightclub, walked behind the police station and waited on Luxford Road, Mt Druitt for a cab. While she was looking for a cab a car containing the accused and his co-accused pulled up behind her and she 'entered' that vehicle. She said she entered it involuntarily, being dragged in there by the accused and his friends.
That was the only evidence before the Court and I cannot understand why it should have been rejected, but there is no finding by his Honour as to the involuntariness of her entry into the vehicle. But whatever that may be, there is no doubt that she was involuntarily detained in the vehicle, and detained for a number of hours.
The accused and his friends were drinking beer and at one stage there was a collision with another vehicle. The victim was repeatedly struck by the accused and told by him to 'Shut up'. The fact that she struck in the face repeatedly does not seem to be mentioned by his Honour.
The victim was constantly endeavouring to escape and she was crying. Her efforts were met with a threat from the accused who said, 'If you say anything I'll kill you'. She believed him and this caused her distress. Those facts do not seem to be mentioned by his Honour.
She was eventually removed from the motor car at a conveniently isolated spot and she was then raped. She was raped per vaginum and then per anum and she was forced to masturbate the accused. Eventually she could not yell any more as her throat was too sore. It is hardly surprising that in the circumstances of such a vicious assault she suffered very considerable trauma, a fact which is not mentioned by his Honour.
She eventually escaped, her escape having little to do with the charity of the accused, but a lot to do with the efforts of the co-accused. In circumstances where the objective facts are as I have described, one would have thought it difficult to imagine a more serious case. That would mean there is very little reason why a penalty of twenty years ought not have been awarded by his Honour.
(T15: 71-72)

In a separate decision, in which he concurred with the view expressed by Meagher JA that the appeal should be allowed, Hulme J said that he wished to add a little more detail concerning the circumstances of Mr Agafili's offence. Justice Hulme said that:
The victim 'entered' the respondent's motor vehicle some time before 2am. It was about 8am before she managed to escape. In that time she had been driven around and confined in the vehicle, attacked in the manner described, returned to the vehicle, driven around again, escaped from the vehicle and been forcibly dragged back, and it was only at about 8am that she managed to finally escape.
Even that was something which the respondent before us tried to avoid. After the victim had run into the house one of the occupants of which the victim had seen in the garden, the respondent followed her in and tried to remove her from that house, or at least induce the occupants to let him remove her, contending that she was his wife.
She thus had some six hours of confinement in circumstances which have been outlined. It is completely incomprehensive to me how the objective circumstances of the case can have permitted the sentencing Judge to do what he did.
(T15: 75-76)
In setting aside the original sentence imposed by Johnston J and substituting a more severe sentence Meagher JA had the following to say about the gravity of the crime committed by Mr Agafili as well as pointing to some objective features which should be taken into consideration:
… There were some objective features. A plea of guilty was entered, albeit late. The accused was thirty-five years old and had no prior convictions. He was a quiet family man and he was said to be contrite, but how much weight can be placed on the ritual expression of 'contrition' before a criminal appeals take place, one does not know.
          There was also enormous emphasis laid by his Honour on the fact that the accused was a devoted religious man, that he went to church twice a week, studied his religion and practised it sincerely. I find it very difficult to understand what this has to do with the case. It is hardly to be suggested I suppose that we was actually praying when he assaulted the victim concerned.
          This is a vicious and brutal case. It cannot be under-estimated and it cannot be the subject of an over-lenient sentence. Parliament has indicated the extent of its disapproval of such cases and there can be no question but that the public it likewise affronted by brutality and savagery of this order.
          His Honour, in a judgment which seems to me quite remarkable, placed a great deal of reliance on subjective factors, both real and imaginary, and practically no weight on the objective circumstances. It is a wholly inadequate sentence.
(T15: 72-73)
Justice Meagher stated that in his view the prisoner should be re-sentenced with a minimum term of nine years and an additional term of three years (T15:73). However, McInerney J, with the concurrence of Hulme J, felt that a minimum term of six years with an additional term of two years was sufficient. As McInerney J said:
… an additional term of two years in the circumstances, having regard to this man's background, would be adequate time to allow his rehabilitation back into the community, and I would also allow time spent to count.
(T15: 75)

Applicant's Statements and Testimony

It should be noted at this stage that since the commission of the offence to which he pleaded guilty, Mr Agafili has given a number of descriptions of the surrounding circumstances. Thus, in a report prepared by the Probation and Parole Service of New South Wales Department of Corrective Services at the time that the respondent's officials were considering Mr Agafili's liability for deportation, it was noted that:
Attitude to Offence
He maintains that there was mutual consent between him and the victim of the offence. He maintains that he is not guilty of the offence (offences) but admits that at the time of the offence he was severely intoxicated and that he cannot recall every details [sic] of the event. As to the extent of his participation he regrets his involvement and resulting actions.
(Report of Mr Gerd Lederbauer, Parole Officer, Goulburn Correctional Centre, 8 December 1996, T13: 28)
In an earlier interview with one of the respondent's officials at the Goulburn Correctional Centre Mr Agafili was reported to have stated that:
Solicitor told him to plead guilty but he did not kidnap the girl. One Samoan & 1 Tongan co-offender. Both on weekend detention. He was drunk at the time & could not recall details of the offences. This was the first time he had touched alcohol in A/A. His 2 co-offenders came to his house for a drink.
(Report of R. Gillett, 18 October 1995, T15: 83)
In a later file note Mr Gillett recorded a further inquiry that he had made of Mr Agafili about the circumstances surrounding the commission of offence:
I contacted Mr Agafili by phone at Goulburn Prison on 5/12/96 in order to clarify a point about the commission of the offence. Mr Agafili pleaded guilty to the offence yet told his wife he was not guilty. When he was interviewed by the case officer he stated that he was drunk at the time and could not recall details of his actions.
When he was questioned about these discrepancies he advised that he pleaded guilty upon the advice of his solicitor in order to get a lesser sentence. He was adamant that he was not guilty of the offence he was charged with as he did not have sexual intercourse with the victim.
(file note of R. Gillett, 5/12/96, T15: 90)
At the hearing of this matter before the Tribunal in July 1999 Mr Agafili was asked a series of direct questions by Mr Cureton, on behalf of the respondent, about various accounts that he had given of the circumstances surrounding the offence to Mr Gerard Webster, a psychologist who had interviewed him, as well as in his prior testimony to the Tribunal in the hearing before Gerber DP. At that prior hearing Mr Agafili had claimed that the victim had asked for money to have sex. He had given her money and they had kissed and he had "touched her on the breast but we never had intercourse" (see transcript 5 May 1998: 8; T27: 185).
In the present hearing Mr Cureton put the following series of questions to Mr Agafili about the offence:
Mr Agafili, you had two friends in the car with you?
THE WITNESS:        Yes.
MR CURETON:        And you three were drinking beer and the victim was in the car and she was yelling and you repeatedly struck her and told her to shut up? Was she trying to – she was trying to escape all the time?
THE WITNESS:        Yeah.
MR CURETON:        But you wouldn't let her escape?
THE WITNESS:        Yeah.
MR CURETON:        You said to her: 'If you say anything, I will kill you.'
THE WITNESS:        Yeah.
MR CURETON:        You drove her to a reserve?
THE WITNESS:        Yeah.
MR CURETON:        And you raped her?
THE WITNESS:        Yeah, yes.
MR CURETON:        You raped her vagina?
THE WITNESS:        Yeah.
MR CURETON:        You raped her anus?
THE WITNESS:        Yeah.
MR CURETON:        And you forced her to masturbate you, is that right?
THE WITNESS:        Yes.
MR CURETON:        And how long was between when you picked her up and - - -
THE WITNESS:        I can't remember.
MR CURETON:        Would 6 hours be about right?
THE WITNESS:        I can't remember.
MR CURETON:        Okay. Then you gave her a T shirt?
THE WITNESS:        Yes.
MR CURETON:        And you took her back to the car?
THE WITNESS:        Yes.
MR CURETON:        And then you drove her back into town?
THE WITNESS:        Yes.
MR CURETON:        And then she wanted to go to the toilet, is that right?
THE WITNESS:        Yes.
MR CURETON:        And that is when she escaped?
THE WITNESS:        Yes.
MR CURETON:        And she went to a house to seek help?
THE WITNESS:        Yes.
MR CURETON:        And you followed her in?
THE WITNESS:        Yes.
MR CURETON:        And you said that she was – to the people in the house, you said that she was your wife, did you?
THE WITNESS:        Yes.
MR CURETON:        And that is when the police were called and you left?
THE WITNESS:        Yes.
(transcript 20 July 1999: 23-25)
In the course of his personal testimony Mr Agafili acknowledged that he had had two interviews with Mr Gerard Webster. In the first of these interviews he had told Mr Webster that he had paid the victim for sex. He now admitted that this was not true. He could not remember what he told Mr Webster about the circumstances of the offence at the time of his second interview (transcript 20 July 1999: 25-28). Further reference will be made later in this decision to the two reports made by Mr Webster about his interviews with Mr Agafili as well as the personal testimony provided to the Tribunal by Mr Webster.
Risk of Recidivism
Policy Direction
Paragraph 13 of the Policy Direction provides guidance to decision-makers about the factors which should be considered when assessing the risk of recidivism. The Policy Direction makes it clear that a person's previous general conduct and total criminal history are highly relevant to assessing this risk. In particular, the following factors will also be relevant to that assessment:
the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
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.
(Policy Direction: paragraph 13)
No allegation was made by the respondent that Mr Agafili had been warned on any prior occasion about the risk of deportation (Policy Direction: paragraph 13(a)) nor was it alleged that Mr Agafili had any previous convictions in Australia although the New Zealand police indicated that he had several minor convictions in that country and was "wanted on warrant to arrest in New Zealand for failure to answer District Court bail and male assaults female" (T15: 67-69). The New Zealand police also informed the respondent's officials in January 1998 that:
… This warrant remains in existence and will be executed should he return to New Zealand. The offences resulted from a violent domestic dispute with his wife which included the alleged threatening of the wife with a knife held to her throat. She was also allegedly punched a number of times to the head and body.
3.The wife has now indicated that she wishes the charges to be withdrawn. Despite this situation the arrest warrant will still be executed and the course of justice will be followed whatever the eventual outcome.
4.The subject was previously convicted in the Otahuhu (NZ) District Court on 16/4/91 on charges of common assault(1) and wilful damage(1). He was ordered to come up for sentence in 1 year if called upon and ordered to pay reparation of $800. He was not called upon for sentencing.
(T24: 158)
Mr Agafili was cross-examined at some length by Mr Cureton about the circumstances surrounding the outstanding warrant which was said to involve an alleged assault upon his wife (see transcript 20 July 1999: 34-41). Mr Agafili denied having threatened his wife with a knife at the time of this alleged assault. He admitted that he was drunk at the time but said that he had only pushed his wife who had fallen over. His wife had recently written a letter to the police in New Zealand asking that the charges should be withdrawn.
In the personal testimony that she provided to the Tribunal Mrs Agafili confirmed that she had asked the New Zealand police to drop charges against her husband (see transcript 20 July 1999: 79). She also denied that she had been assaulted by her husband or threatened by him with a knife as she had alleged in a statement made to the police about this particular incident. Her husband had been upset and he had damaged some things and slightly pushed her. As a result of this push she had been unbalanced and fell. Her husband had been heavily affected by alcohol at the time and she had only told the police that she was assaulted in order to have them take him away so she could have a peaceful sleep (transcript 20 July 1999: 75-76).
Prospects of Rehabilitation: Prison Performance
During the course of his long period spent in custody Mr Agafili appears to have acquired a most positive work and behaviour record. In a New South Wales Probation and Parole Service report prepared for the respondent in December 1996 (T13) correctional officials observed that no gaol offences were recorded against Mr Agafili although he had a B classification due to the gravity of his offence. Mr Agafili had participated in drug and alcohol counselling, and had been assessed by staff as being a "binge drinker". It was considered that he had made progress working with these counsellors, and also in pursuing his general education. He had been in regular contact with chaplains at the Goulburn Correctional Centre and was regarded by them as a deeply religious but rather naive man.
The report also noted that Mr Agafili had been receiving regular visits from his wife and children and maintained close contact with them. If released back into the Australian community Mr Agafili planned to reside with his wife and children at their home in Blacktown. At the time of the writing of the report Mr Agafili had no employment offers. He was confident that he could obtain employment as a process worker with his previous employer.
The report concluded with the following assessment:
Mr. Agafili, now, presents as mature, assertive but factual, non aggressive, friendly and co-operative.
Since his incarceration Mr. Agafili has made every attempt to rehabilitate himself. He has substantially matured and has made immense progress concerning his vocabulary and communications in the English language. His understanding and awareness of drug and alcohol dependency is now substantial, particularly with respect to alcohol abuse and binge drinking. Similarly, his involvement in education is to be commended. He claims that he experiences his custodial term as a salutary and sobering event.
It would appear that Mr. Agafili is genuine in his regret at having committed the offence and is now ashamed of his behaviour at the time. …
…
His changing attitudes, his increasing maturity, his application/behaviour in the institution, all are testimony to his resolve to reintegrate into the community. As his wife and children are adapting more and more to the Australian way of life, he is hopeful on release to join them and of being allowed to say in Australia.
(T13: 28-29)

Psychological and Psychiatric Evidence

The Tribunal also received into evidence a number of written reports about Mr Agafili's psychological and psychiatric well-being, as well as hearing personal testimony from several experts on this issue. Dr Thomas Clark, a consultant psychiatrist, prepared a detailed report on Mr Agafili at the time of his original conviction and sentence (T21). Dr Clark said that there were no signs of mental illness but that at the time of committing the offence Mr Agafili appeared to have had "an episode of acute intoxication. He is an introverted man and this aberrant behaviour came out at that time". Dr Clark also noted that he advised Mr Agafili to go to local Blacktown drug and alcohol counsellors in order to become more fully aware of the dangers of this type of alcoholic excess.
At the first hearing of this matter before the Tribunal a report on Mr Agafili was prepared by Mr Gerard Webster, a consultant psychologist, at the request of the respondent. This report was considered by the Tribunal and Mr Webster also gave personal testimony concerning his report findings (see T26; T27: 217-225). In his report and testimony Mr Webster said that he had diagnosed Mr Agafili as having:
… an underlying anti-social personality disorder that is severe in its magnitude and consequences. While assessment of his alcohol usage has indicated that he has been alcohol dependent, this is considered to be secondary to the personality disorder. Given the denial and minimisation of his anti-social actions throughout his life, his prognosis for rehabilitation must be considered poor and the risk of re-offending is high.
(T26: 166)
At the present hearing of this matter Mr Webster provided an updated report about Mr Agafili, and again testified in person. He reasserted his diagnosis of Mr Agafili as having an anti-social personality disorder. That diagnosis was subsequently challenged by Mr Turner, on behalf of the applicant, during the course of a lengthy cross-examination of Mr Webster. Mr Webster's report and testimony will be considered in more detail shortly but first two additional psychological assessments made of Mr Agafili need to be reviewed since they form a part of the material upon which Mr Webster was cross-examined.
Mr Mark Blows
Mr Mark Blows, a consultant psychologist, prepared an extensive psychological report about Mr Agafili at the request of his legal representative (A1). Mr Blows' report took account of a wide range of information including psychological testing of Mr Agafili; personal interviews with both Mr Agafili and his wife; and a conference with Mr Graham Rendell, a psychologist within the Department of New South Wales Correctional Services, who also had extensive interactions with Mr Agafili. On the basis of his analysis of this information Mr Blows reached the following conclusions:
Returning to the original questions, there is no clinical or behavioural evidence to sustain a diagnosis of anti-social personality disorder. There is much information to squarely disconfirm [sic] that hypothetical diagnosis. On the whole, Mr Agafili has adapted successfully to the stresses of urban life although there was one very clearly marked threat to his mental health in New Zealand.
Mr Agafili intends to avoid alcohol, but he does not promise to do so absolutely. Actually, this is something that requires greater examination after leaving jail [sic]. It is not clear that he needs to avoid alcohol entirely. I do not have the impression that he is an alcoholic. He used to drink to excess sometimes. While in jail [sic] he had done well without it. There is some risk of reverting to alcohol use but at this stage it is not clear that he would revert to excessive use.
Even if he does drink heavily at times, the risk of further offences of violence is low. He has learned from the past mistake and this learning appears effective. I judge that the risk of further offences with violence is minimal.
Since there is no underlying deep disorder of personality, there is very little risk of further offences of violence if he does not revert to alcohol use.
In general, there is every reason to believe that Mr Agafili is likely to avoid further offences. His track record in jail [sic] is excellent. What is needed now is follow up with probation and parole.
The improbable has happened in that Mr Agafili has received and has benefited from psychological therapy. The best indication for rehabilitation is the quality of relationships with teachers and therapists. This indicator is decidedly positive in Mr Agafili's case. It is very pleasing that Mr Randall [sic] was able to provide an opportunity and that Mr Agafili actively used that opportunity.
(A1: 9)
In his personal testimony Mr Blows continued to maintain the accuracy of his diagnosis and to question the validity of the assessment made by Mr Webster (see in general transcript 20 July 1999: 48-73).
Mr Graham Rendell

At the request of the respondent Mr Graham Rendell, a psychologist working at the John Moroney Correctional Centre and a therapist to Mr Agafili, provided a written report (A2) largely confined to "Mr Agafili's attitudes to his crime, his risk of re-offending, his return to alcohol, and the likelihood that he will continue with his treatment." (A2: 1). In preparing his report Mr Rendell noted that he had consulted a wide range of information sources including Dr Clarke's psychiatric report and the psychological reports provided by Mr Webster and Mr Blows. He had personal consultations with Mr Webster and Mr Blows as well as other colleagues and correctional services staff about Mr Agafili. He had also interviewed Mrs Agafili .
Mr Rendell stated in his report that he viewed Mr Agafili's offence as one which had been driven by an intense expression of anger, using sexual assault as a means of fulfilling emotional needs.
… On actuarial measures he is assessed as being of moderate risk. His primary risk factors are a return to alcohol abuse; inappropriate peer relationships and activities; relationship breakdowns; situations where he perceives himself to be ridiculed or rejected; and withdrawal from therapeutic interventions for sex offending, alcohol abuse, and anger/violence prevention.
(A2: 2)
Mr Rendell said that on the basis of his own assessment of Mr Agafili he did not appear to meet the diagnostic criteria set out in the Diagnostic and Statistical Manual of Mental Disorders 4th edition (DSM IV) for Anti-Social Personality Disorder (APD). Mr Rendell said that for a definitive diagnosis of APD, as opposed to anti-social behaviours which he had clearly demonstrated, invariably while under the influence of alcohol, the following factors would need to be considered:

Mr. Agafili's stable work history
the absence of information of Conduct Disorder prior to 15 years
that most [of] [sic] his criminal offences, with attendant impulsivity[sic] and recklessness appear to be alcohol related
he demonstrates no irritability or aggression when sober
the corporate cultural identity of Samoans, where empathy, responsibility, saving face and shame are experienced and expressed very differently to that of western culture
(A2: 3)

In regard to Mr Agafili's attitudes to the offence he had committed Mr Rendell said that he had consistently told him and other correctional services psychologists essentially the same version of facts. These were that:
.. he went out drinking with some of his friends because he felt obliged to. His wife was not happy with this. After drinking for many hours they met up with the victim, bought her drinks at her instigation, Mr Agafili his co-offenders and the victim, left together for more drinking and then lifts to their respective homes.
He claims that the victim was kissing one of his friends in the back of the car he was driving which aroused him. At a later stage the question of her having sex with them arose but only on the payment of money. Mr. Agafili claims he paid her, yet when he stopped to have sex the victim asked for more money. He says at this stage he became angry, dragged her from the car, tore her top off, fondled her breasts and attempted to take her pants off. At this stage he claims she said she would have sex with him but somewhere more suitable. They returned to the car and in the process of dropping his friends off the victim escaped went into a house and he pursued her to get his money back.
Mr. Agafili admits to the above assault but claims at no stage did he have any form of intercourse with the victim. He further claims that he pleaded guilty on advice of his solicitor, and was unaware of exactly what he pleaded guilty to, but is prepared to accept the consequences 'for the bad thing he did and the shame he has brought on his family, his extended family and his country'. He has expressed, and to date demonstrated a willingness and commitment to do whatever is necessary to prevent a repetition of his current circumstance.
(A2: 4)
Mr Rendell said he concurred with the assessment made by Mr Webster that Mr Agafili had to admit his wrongdoing to others without compromise. However, while Mr Agafili's recounting of the criminal actions in which he had engaged differed from those accepted by the courts he did admit and accept that he had committed a sexual offence, had harmed another and was deserving of punishment. While this level of disclosure might not be ideal it was still considered a sufficient starting point for treatment of Mr Agafili. That treatment had in fact begun and Mr Agafili had completed the 16 session sex offenders psycho-education program (SOPE).
Turning to Mr Agafili's risk of re-offending Mr Rendell noted that a number of actuarial measures had been undertaken of his level of risk. These assessments showed the following:

Actuarial Risk Assessment (RRASOR) : A widely used instrument to assess the level of risk presented by sex offenders by actuarial score. Mr. Agafili is in the 'low to moderate' range. His score is moderated through having no prior sex offences, his sexually offending against women, and his being over 25 years of age.
Vermont Assessment of Sex Offender Risk (VERMONT): An actuarial instrument used to measure both Re-offence risk and Violence Risk. On the Re-Offence Risk scale Mr. Agafili is placed at the moderate range, and in the Violent Risk scale he is located in the high range.
Sex Offender Risk Guide (SORAG): This measure incorporates the Hare Psychopathology Checklist-Revised (PCLR-R) scores. The SORAG is an extensively reported actuarial measure based on documentation and clinical interview to assess 'the probability of violent recidivism' at two different time spans. Mr. Agafili is placed within the 39 percentile for the SORAG population of likelihood of re-offending within 7 years and 59 percentile within 10 years.
The Level of Service Inventory-Revised (LSI-R): A widely utilised and reported 'quantitative survey of attributes of offenders and their situations relevant to the decisions regarding level of service required.' Mr. Agafili's score rates him in the high risk/needs … percentile with an approximation of 31.1% chance of recidivism. Alcohol and sex offender domains were noted for specific service attention.
(A2: 5)

Mr Rendell said that Mr Agafili had demonstrated inadequate self-regulation of his actions and impulses towards anger and violence when intoxicated, and this did heighten his risk of re-offending. Mr Agafili had also not acknowledged any issues of possible sexual deviance and had tended to minimise the extent of his offences. These actions did indicate a reluctance towards full disclosure on his part which could impede his treatment. That treatment and his prospects of rehabilitation would also be put at severe risk if Mr Agafili's family did not continue to provide him with support. Mr Rendell said that Mrs Agafili had stated that she would leave her husband if he relapsed to his former behaviour.
Mr Rendell concluded his report with the following statement::
Mr. Agafili has in the writers [sic] dealings with him over some 20 months remained committed and earnest in his desire to do whatever he has to remove the shame he feels as a result of his offending. His sense of shame appears to be a powerful motivating factor, and one that can be harnessed. This attitude also seems to be supported through his religious beliefs and background.
Due to Mr. Agafili's rather dependant personality he tends to seek out ways of surrendering autonomy to external agents, looking for others to guide and make decision for him. If he believes, as he seems to, that he is expected to engage in treatment, particularly if it will assist him to confront and gain ascendancy over his sense of worthlessness and shame as a result of his offending, he will do so. It is felt that should he complete therapy in the areas of sex offending, anger and violence prevention, and alcohol relapse prevention his risk of further reoffending would be greatly diminished.
(A2: 7)

Mr Graham Webster

As will be apparent from the psychological evidence reviewed so far, Mr Blows and Mr Rendell did not concur with the diagnosis made by Mr Webster that Mr Agafili was suffering from APD. The implication of this diagnosis for Mr Agafili's future rehabilitation prospects was succinctly stated in the following exchange between Mr Rendell and Mr Turner while the former was giving his personal testimony to the Tribunal:
… You've expressed your views about the diagnosis made by Mr Webster in his report of Mr Agafili having antisocial personality disorder, what difference would it make to your prognosis if in fact Mr Webster's diagnosis is correct? What difference does it make in terms of outcome, susceptibility to treatment?---Well one of the fundamental things about personality disorder which I think Mr Webster actually describes in one of his reports is that people with such disorders can't learn, they don't learn from past mistakes. Therefore if that's the case then by virtue of that you are saying that this man can't change because this man is what he is and will not change, he can't work therefore he can't change therefore things won't be different. If such a diagnosis is accurate then that's the implication.
(transcript 21 December 2000: 28)
In his personal testimony to the Tribunal Mr Webster continued to maintain the viability of his diagnosis. Mr Webster said that he had read Mr Rendell's report. The principal point of disagreement between his view and Mr Rendell's appeared to be in regard to the criteria that stated that information was required of conduct disorder with onset before the age of 15 years. This was an important issue but the diagnostician had to work with the information that was available and in his opinion the diagnosis of APD was justified despite the absence of specific information on this point. It was highly unlikely that a man like Mr Agafili who had committed such a serious offence would engage in this type of behaviour unless there was some type of deep psychological disturbance and the category that most fitted his case was that of APD (see transcript 22 December 2000: 4).
Mr Webster said that he did agree with Mr Rendell's listing of the primary risk factors in Mr Agafili's case, and in particular the risk of him drinking to excess. Mr Webster said that he did not have enough confidence that Mr Agafili could, once released from prison, draw a line between what was moderate or safe drinking and what was not. If he did have another binge drinking session then it could lead to a repeat of his sexual offending (see transcript 22 December 2000: 11-12).
Deterrence
A third factor referred to in the Policy Direction relevant to an assessment of the level of risk to the community is the possibility that the deportation of a person like Mr Agafili will act as a deterrent to others (Policy Direction: paragraph 14). The Tribunal did not receive any specific evidence regarding this factor from either of the parties. However, in both its Statement of Facts and Contentions, as well as in its submissions, the respondent asserted that Mr Agafili's deportation would deter non-citizens from committing similar offences by showing that persistent violent offenders would not be tolerated in this country. Further consideration of this submission is deferred until later in this decision.
Best Interests of the Children
The Policy Direction makes it clear that as a matter of primary consideration in a deportation proceeding, a decision-maker must take account of the best interests of any children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee (Policy Direction: paragraph 16). The Policy Direction recognises that:
It is the Government's view that, in general, the starting point for any consideration of the best interests of the child would be that the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the potential deportee, include, but are not limited to:
any evidence that the potential deportee has abused or neglected the child in any way, including physical, sexual and/or mental abuse; or
any evidence that the child has suffered or experienced any physical or emotional trauma arising from the potential deportee's unlawful conduct.
(Paragraph 18)
The Policy Direction also contains the following general guidance to decision-makers:
19.It is the Government's view that when considering what are the best interests of the child or children, regard should be had to:
the nature of the relationship to potential deportee;
whether the child is an Australian citizen or permanent resident;
the likely effect that any separation from the potential deportee would have on the child or children;
the likely effect on the child or children of leaving Australia if the parents decided to take the child or children with them from Australia; and
the impact of the potential deportee's prior conduct on the child.
20.It is the Government's view that considerations which aid in assessing the above factors include:
the age of the child;
the time that the child has spent in Australia;
any language barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances;
any cultural barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.
any medical problems of the child and the likely access to relevant facilities in the likely country of future residence;
the child's degree of emotional and psychological dependence on the potential deportee; and
the amount of time that the potential deportee has actually spent with the child.
As already noted Mr Agafili has three children (see paragraph 6 above). The two eldest – a son and daughter – were born in New Zealand while the youngest child was born in this country. All three children are now Australian citizens, as is their mother with whom they continue to reside.
During the course of her personal testimony to the Tribunal Mrs Agafili confirmed that if her husband were to be deported the entire family would return with him to New Zealand. Mrs Agafili said that she was troubled about the impact that such a move would have upon her daughter Carolyn who had been upset because of a recent change that had been made to her place of schooling. She felt that further disruption to Carolyn's education could pose a problem. However, the children were all close to their father and they would go back with him to New Zealand if this proved to be the outcome of the present proceedings (see in general transcript 20 July 1999: 73-74).
In addition to Mrs Agafili's testimony the Tribunal also received professional assessments of what was believed to be in the best interests of the children from two of the psychologists who testified in this matter – Mr Blows and Mr Webster. Mr Blows reported that when he interviewed Mrs Agafili she had described her husband as a good provider who helped her with the children. When he had raised the issue of the possibility of returning to New Zealand Mrs Agafili had said that she did not wish to leave Australia because the children were now well settled into their school. Mrs Agafili, according to Mr Blow's assessment of her:
… appears to be of good character. Her needs are simple. She is clearly loyal to her husband. This may throw light on his character. His wife is patiently waiting for him and supports him emotionally. She speaks of him as her right hand in caring for the children. She can usually cope with his drinking, used to it, as she is, in her culture as a men's habit. If he treated her badly, there was no indication of it in Mrs Agafili's conversation.
(A1: 3)
In his assessment of Mr Agafili's family Mr Webster conducted joint interviews with Mrs Agafili and the three children. In the course of this interview Mr Webster was able to observe interactions between the children and their mother, and to take note of the children's state of emotional security. Mr Webster reported that:
All three children demonstrated considerable security in their attachment to their mother. They presented as very well behaved children, even after a lengthy (60 minute) session. They were very respectful towards their mother, and this was reciprocated by her. Mrs Agafili also impressed as a very genuine and caring mother. She explained that her life has been exclusively focussed on the needs of her children and husband. She looks forward to the time where the family will again live together and believes that her husband has now learnt from his mistakes.
Mrs Agafili indicated that the family unit has become quite isolated, especially since the incarceration of her husband. Mrs Agafili stated that she 'hates friends' as they 'give problems'. Though extended family members also reside in Australia, Ms Agafili has preferred to have little contact with them. She explained that while family affection is strong at a distance, frequent contact often has resulted in episodes of domestic violence … so much so that she now prefers isolation.
The children are also quite isolated, though this has been overcome by their attendance at school and preschool. Only the eldest child, Burnham (9 years), participates in any structured activity outside school. This has related to his sporting interests and has only been occasional. Typically, the children's lives revolve around school activities, watching television and, in the case of Carolyn (8 years), reading.
Mrs Agafili confirmed that the family would move with her husband if the Deportation Order was upheld. Like her husband, her main concerns were financial: having insufficient funds to re-locate in the knowledge that the cost of living in New Zealand was greater than in Australia. She also expressed some concern for her daughter, Carolyn's, well-being. When the family moved house in March, 1998, Carolyn became very upset and was permitted to remain at home and away from school for two weeks.
(R1: 4-5)
Mr Webster concluded, on the basis of his interviews, that the children's locus of emotional security rested in the positive relationship that they enjoyed with their mother. While any exposure of the children to domestic violence would be most destructive he was of the view that any change made to their location, providing their mother travelled with them, would not be productive of long-term harm. A move to New Zealand would be disruptive but there were both family and church connections to New Zealand that might assist in the transition back to that country.
Hardship
Paragraph 21 of the Policy Direction observes that:
It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters 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; and
the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration).

Paragraph 21(a): Mr Agafili

In assessing the degree of hardship which may be suffered by Mr Agafili, paragraph 22 of the Policy Direction provides a list of a range of factors which are likely to be considered by decision-makers. This list includes:
whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
while it is less likely that potential deportees who have spent the greater proportion 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;
the strength of other family, social or business ties in Australia;
social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.

A range of evidence has already been reviewed in regard to the relationship between Mr Agafili and his wife including her expressed intention to accompany her husband back to New Zealand with the children should he be expelled from this country (Policy Direction: paragraph 22(a)). In regard to Mr Agafili's own ties to Australia and New Zealand the evidence shows that prior to his commission of the deportable offence Mr Agafili was employed as a worker in a chicken processing factory. However he has spent the great majority of his time in this country in custody. Mr Agafili's ties with New Zealand are more extensive since he relocated to that country from Western Samoa in 1986. Both Mr and Mrs Agafili have close family relatives who continue to reside in New Zealand including Mr Agafili's 70-year-old mother and two brothers and two sisters. Mr Agafili also remains a New Zealand citizen (Policy Direction: paragraph 22(c), (d) and (f)).
Paragraph 21(b) Other Persons
The evidence concerning the potential impact of any return to New Zealand upon Mrs Agafili has already been reviewed. As in the case of her husband, Mrs Agafili continues to have relatives who live in the Auckland area. Her own ties both with relatives and other persons in Australia would appear to be quite limited.
CONSIDERATION
Submissions and Policy: Expectations of the Community
The relevant factors set out in the Policy Direction which require consideration by the Tribunal in relation to the expectations of the Australian community have been referred to earlier. In his submissions made on behalf of Mr Agafili, Mr Turner contended that the evidence should lead the Tribunal to conclude that Mr Agafili's prospects for rehabilitation were good and his risk of recidivism low. There was therefore an acceptable level of risk to the Australian community which did not require protection against the possibility of him re-offending by expelling him from the country. In reaching this conclusion Mr Turner submitted that the Tribunal should reject the diagnosis made by Mr Webster that Mr Agafili was suffering from APD. Such a diagnosis, if maintained, would lead to a conclusion that Mr Agafili's prospects of rehabilitation were negligible and his risk of recidivism was high. However, Mr Webster had been unable to establish a definitive diagnosis of APD as that disorder was described in the DSM IV. Further, his diagnosis of APD was disputed by the expert evidence given by both Mr Rendell and Mr Blows. Their views should, contended Mr Turner, be preferred over those of Mr Webster who was much less experienced in dealing with sex offenders and much less knowledgeable of Mr Agafili.
In regard to the specific findings made by Mr Blows and Mr Rendell about Mr Agafili's prospects of rehabilitation Mr Turner contended that it was their professional opinion that Mr Agafili was addressing in an adequate way his alcohol problems and his offending. Mr Rendell felt that during the time that he had been assisting Mr Agafili with his treatment in prison he had been progressing well. Further extensive treatment was needed but this would be available to Mr Agafili, with the support of his wife, should he be released back into the Australian community. Mr Agafili had performed in a very positive way throughout the term of his imprisonment. He had expressed contrition and remorse and he was well regarded by all of those who came into contact with him.
In her submissions made on behalf of the respondent Ms Kapel expressed strong disagreement with the contention made on behalf of the applicant, that Mr Agafili presented an acceptable level of risk of re-offending to the Australian community. Ms Kapel said that regardless of the risk of recidivism on Mr Agafili's part paragraph 15 of the Policy Direction made it clear that there was an expectation that a non-citizen, like Mr Agafili, who was the perpetrator of an abhorrent crime should not be allowed to remain in this country. If, however, the Tribunal was not prepared to find that Mr Agafili's crime was abhorrent in this sense then the respondent submitted that the level of risk of him re-offending was unacceptable to the Australian community and that the need to protect the community outweighed any hardship that might be experienced by Mr Agafili and his family through deportation.
Ms Kapel submitted that the crimes that had been committed by Mr Agafili were very serious within the meaning of the Policy Direction. Their gravity had been reflected in the sentences imposed by the Court of Criminal Appeal. There were long lists of inconsistencies in the descriptions given by Mr Agafili about the circumstances surrounding the offences. These inconsistencies suggested that he was not a person who told the truth, and that he had not accepted responsibility for his criminal behaviour.
In regard to the expert evidence provided to the Tribunal Ms Kapel said that Mr Blows' views that Mr Agafili's risk of re-offending was low should be rejected because his analysis of Mr Agafili's history of violent and aggressive behaviour was flawed. In particular, Mr Blows had given inadequate attention to Mr Agafili's past pattern of alcohol abuse and the possibility that it would be repeated if he were released back into the Australian community.
Ms Kapel contended that the Tribunal should accept Mr Webster's diagnosis of Mr Agafili as a person suffering from APD. Mr Webster had also diagnosed Mr Agafili as suffering from substance abuse disorder, with a continuing problem of alcohol dependency.
In regard to the evidence of Mr Rendell, Ms Kapel submitted that on actuarial measures he had assessed Mr Agafili as having a moderate risk of re-offending while in his own overall assessment of Mr Agafili he thought he had a low to moderate risk of recidivism. However, Mr Rendell's overall assessment was also contingent upon an assumption that Mr Agafili would continue with his treatment for sex offending and also abstain from alcohol. Neither of these assumptions gave hope for any confidence that Mr Agafili might not relapse and engage in further excessive alcohol consumption and repeat offending. There was no evidence before the Tribunal that in any of the courses that Mr Agafili had taken in prison he had addressed on an adequate basis his drinking problems.
Ms Kapel said that even if the Tribunal should reject Mr Webster's diagnosis of APD and his assessment of a high risk of recidivism on Mr Agafili's part it should nonetheless find that Mr Rendell's assessment of a low to moderate risk was justified and that this was a level of risk which was too great for the Australian community to tolerate. Further, Mr Agafili's deportation would act as a strong deterrent to the commission of similar offences by more easily influenced people. It would also send a strong message to the community at large that abhorrent behaviour would not be tolerated, and that non-citizen perpetrators could anticipate swift expulsion from the country.
The Tribunal's Views
The Tribunal has already set out in some detail the circumstances surrounding the incident in January 1995 which has resulted in Mr Agafili now facing deportation. These are circumstances which led Mr Agafili to plead guilty in the District Court of New South Wales in May 1995 to a charge of aggravated sexual assault. These are also circumstances which led to charges of kidnapping and aggravated sexual assault being taken into account at the time of sentence being imposed upon Mr Agafili for his criminal offending.
Paragraph 11 of the Policy Direction sets out examples of offences which are considered by the Government to be very serious. These include:
…
(c)sexual assaults, whether or not accompanied by other violence, and especially where there has been than one sexual offence;
…
(g) kidnapping;
…
(l) any other crimes involving violence or the threat of violence.
There is no doubt that Mr Agafili's criminal offending meets this definition of being very serious under each of these categories. The gravity of his offending was also emphasised by the actions of the New South Wales Court of Criminal Appeal which found the trial judge's original sentence to be too lenient and which imposed a new and much more severe sentence of imprisonment. As one of the justices of the Court of Criminal Appeal remarked at the time, it was "difficult to imagine a more serious case". The same justice noted that:
This is a vicious and brutal case. It cannot be under-estimated and it cannot be the subject of an over-lenient sentence. Parliament has indicated the extent of its disapproval of such cases and there can be no question but that the public is likewise affronted by brutality and savagery of this order.
(see paragraphs 23 and 25 above; judgment Meagher JA, T15: 73)
Given these views expressed by the New South Wales Court of Criminal Appeal it seems reasonable to conclude that Mr Agafili's offending not only falls within the framework of paragraph 11 of the Policy Direction but also meets the description of an abhorrent crime referred to in paragraphs 8(b) and 15 of the Policy Direction. Paragraph 15 states that:
15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may 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. Decision makers should have due regard to the Government's view in this respect.
In his submissions Mr Turner contended that for a crime to be considered abhorrent, as that term is used in the Policy Direction, it should attract the maximum sentence available. In the case of Mr Agafili's crime this was 20 years but the Court of Criminal Appeal had only imposed a sentence which was not even half of the available maximum. Thus the Court could be taken to have envisaged crimes at least twice as serious, repugnant or abhorrent as Mr Agafili's. The Tribunal rejects this approach to the interpretation of the Policy Direction. There is no doubt that the severity of the sentence imposed, together with the maximum punishment available, are factors which require consideration when assessing whether or not a particular crime is of such a nature that the Australian community would expect that its perpetrator be deported. There are, however, other factors which also require review. The way in which paragraph 15 of the Policy Direction should be interpreted has been considered in a number of recent decisions of this Tribunal: see Afaoa and Minister for Immigration and Multicultural Affairs (1999) AATA 82; Deng and Minister for Immigration and Multicultural Affairs (1999) AATA 386. In the latter decision the Tribunal referred to the following Macquarie Dictionary definition of the word abhorrent:
Adj. 1 exciting horror; detestable. Adj. 2 Feeling horror (fol. by of): abhorrent of excess. 3. Utterly imposed (fol. by to): abhorrent to reason. 4. remote in character (fol by from) abhorrent from the principles of law.
(at paragraph 60)
Bearing in mind this dictionary definition, and also the need to undertake a dispassionate and objective appraisal of Mr Agafili's conduct, it is conduct which the overwhelming majority of the Australian community would judge to be detestable, exciting horror or abhorrent. That conduct involved the snatching of a young woman from a public street by three adult males and her subsequent forceful detention and sexual victimisation over a period of many hours. Mr Agafili, a non-citizen who had only been in this country a very short time, was the principal perpetrator of these actions. Even when the victim sought to escape from her ordeal it was Mr Agafili who tried to prevent her seeking assistance from her potential rescuers.
Despite pleading guilty to the charges which have been specified Mr Agafili has provided a range of exculpatory accounts of the incident up until the time of the present hearing before the Tribunal. It has been suggested, probably correctly, that his memory of the incident is poor because he was under the influence of alcohol at the time. That fact does not, however, explain the claims he has made in the past that the victim was a prostitute, or that he had offered her money for sex, or that he did not have sexual intercourse but only fondled her during the course of the crime. Coupled with the dubious denial of his earlier involvement in a serious assault upon his wife while still living in New Zealand the Tribunal is of the view that Mr Agafili's evidence in general about his past, present and likely future conduct must be judged with extreme caution.
Paragraph 15 of the Policy Direction seems to suggest that if a finding is made that a particular crime is abhorrent then this fact alone may justify deportation even though there is "no serious likelihood that the person is a continuing threat, or would be a future threat, to the community". However, this is not the situation which prevails in Mr Agafili's case, for the Tribunal is also of the view that he does represent a continuing or future threat to the safety of the community because of his risk of re-offending. The most optimistic assessment of Mr Agafili's prospects for rehabilitation was proffered by Mr Blows, and the most pessimistic by Mr Webster. According to Mr Blows, Mr Agafili was incorrectly diagnosed by Mr Webster as suffering from APD. Mr Blows felt that even if Mr Agafili continued to drink, and even drink heavily at times, the risk of him committing further offences of violence was low. Mr Webster, on the other hand, quite apart from his APD diagnosis, believed that there was also a significant risk of Mr Agafili continuing his binge drinking behaviour and re-offending in a violent manner. Mr Webster assessed Mr Agafili's risks of recidivism to be high.
An intermediate position was taken by Mr Rendell, an experienced psychologist who had the benefit of providing therapy to Mr Agafili, and observing his behaviour in prison, over a significant period of time. Mr Rendell did not dismiss entirely the prospect of an APD diagnosis but thought it was rather unlikely because of the lack of any evidence of offending on Mr Agafili's part during his formative years, as well as the nature of his overall personality. While believing that Mr Agafili had made some significant progress in coming to terms with his offending, and seeking assistance for his alcohol abuse problem, Mr Rendell still felt there were caveats which had to be placed on his long-term prospects of rehabilitation. Those caveats were very much linked to the possibility of Mr Agafili resuming a pattern of binge drinking in company with peers like those with whom he had committed the deportable offence. Mr Rendell also pointed to the crucial supportive role being said to be played by Mrs Agafili in her husband's rehabilitation. Any fracturing of the relationship with Mrs Agafili could have disastrous consequences.
The Tribunal found Mrs Agafili, in general, to be both a truthful and courageous witness who displayed admirable support for her husband under the most testing of circumstances. Throughout Mr Agafili's long imprisonment she has maintained close contact with him and ensured that his children have also been able to visit their father and retain his love and affection. Despite this positive assessment of Mrs Agafili's current role there remains the troubling evidence of past alleged domestic violence inflicted upon her by Mr Agafili while they were still residing in New Zealand. The Tribunal did not find convincing either Mr or Mrs Agafili's accounts of the incident which resulted in Mr Agafili's arrest and charging. Mrs Agafili also acknowledged that she had separated from her husband around this time although she denied that it was as a result of the violence that had occurred.
Having regard to all of this evidence the Tribunal reaches the conclusion that there remains a risk, which is at best low to medium, of Mr Agafili repeating his violent behaviour because of alcohol related problems. Mr Agafili did not suggest that he would, when released, abstain from drinking alcohol. Mr Rendell, in particular, indicated that it was his view that the risk of repeat offending by Mr Agafili would be increased significantly if he resumed his pattern of excessive alcohol consumption.
The Tribunal found Mr Rendell to be a balanced and thoughtful witness who recognised both the strengths and the weaknesses of Mr Agafili's attempts at rehabilitation. Mr Rendell gave a realistic assessment of the pitfalls that lay ahead for Mr Agafili. In describing these pitfalls the Tribunal is of the opinion that Mr Rendell demonstrated a better understanding of Mr Agafili's prospects of rehabilitation than did Mr Blows, who appeared to underestimate, in particular, the likelihood of Mr Agafili becoming involved in the further abuse of alcohol. The Tribunal also prefers Mr Rendell's assessment of the risk of Mr Agafili re-offending to that of Mr Webster. Mr Webster's assessment was determined primarily by his APD diagnosis. The Tribunal felt that there were sufficient reasons for questioning this diagnosis presented by both Mr Blows and Mr Rendell, to justify the rejection of any attachment of this diagnostic label to Mr Agafili's pattern of offending.
While rejecting this aspect of Mr Webster's report and testimony the Tribunal recognises that professional disagreements among experts about the appropriate diagnosis of psychological and psychiatric conditions are quite commonplace. In the present matter these disagreements do not affect the core finding which results from all of the evidence before the Tribunal that the overall risk of Mr Agafili re-offending is of such a level as to not assure the safety and security of the Australian community. That community has every right to expect that it will be protected from the risk of re-offending by Mr Agafili who has already inflicted significant harm upon an innocent and defenceless citizen. The Tribunal is required, however, under the terms of the Policy Direction, to weigh up the risk of re-offending, and the associated expectation that those who present unacceptable risk to the community will be expelled, with the other factors which are relevant, including the primary consideration of what is in the best interests of Mr Agafili's children. The Tribunal now turns to the submissions made on behalf of both parties in relation to the best interests of the three children, and also to the other factors which should be weighed up in this matter.
Submissions and Policy: Bests Interests of the Children and Other Factors
Consistent with paragraph 18 of the Policy Direction which has already been set out above, the starting point for any consideration of the best interests of each of Mr Agafili's children must be that their best interests will be served if they remain with their parents. The Tribunal did not receive any evidence which would justify a countervailing consideration pointing to each child's best interests being served by separation from Mr Agafili because of any abuse or neglect, or as a result of any physical or emotional trauma arising from his unlawful conduct (Policy Direction: paragraph 18(a) and (b)). The evidence in general showed that Mr Agafili appeared to have been a supportive father and to have maintained his ties with each of his children throughout his imprisonment in this country.

As has also been noted earlier the evidence before the Tribunal showed that should Mr Agafili be deported it was the intention of his wife that both she and the children would accompany Mr Agafili back to New Zealand. Thus in the event of deportation the Agafili family would remain intact, although it was the preferred position of them all that they should continue to remain in Australia. Such residency would in any case be available to Mrs Agafili and all of the children, each already being an Australian citizen.
In his submissions made on behalf of the applicant, Mr Turner contended that the best interests of each of Mr Agafili's children was to remain in Australia with their parents. The minimal risk to the Australian community of allowing Mr Agafili to remain in this country was not sufficient to outweigh this consideration. Ms Kapel, on the other hand, contended that the best interests of Mr Agafili's children did not require him to remain in Australia to the exclusion of the interests and expectations of the Australian community. The other relevant considerations were also insufficient to affect this balance which justified Mr Agafili's expulsion. Mr Agafili had made a negligible contribution to the Australian community and his lack of established community ties outweighed any hardship that would be imposed on Mrs Agafili and his family.
The Tribunal's Views
The Tribunal has already set out the psychological evidence concerning the likely impact of any movement by Mr Agafili's family back to New Zealand upon each of the children. That evidence would seem quite clear and supportive of the view that while there would be some disruption to the schooling and related activities of each child the fact that they would still be a family unit would minimise any harm that might result. Further, the adjustment of the children to life in New Zealand would not be too difficult, given the fact that both of their parents continue to have strong ties with that country through a range of relatives. The children seem to have a very good relationship with their mother and her presence and continuing support, even if Mr Agafili were to suffer a relapse in his drinking and allied behaviour, would insulate them to a large degree from any negative outcomes.
It is all but inevitable that in the event of Mr Agafili's deportation some personal hardship would be encountered both by him and by his family. However, in assessing this potential hardship it should be remembered that New Zealand is a neighbouring country with very similar social, cultural and related values to that of Australia and with a well-developed welfare system which could assist the Agafili family in appropriate circumstances.
CONCLUSION
The Tribunal has determined that Mr Agafili has committed a crime which the overwhelming majority of the Australian community would describe as abhorrent. The Tribunal has also determined that there is a low to medium risk of Mr Agafili re-offending. Given these findings, the Tribunal believes that the expectations of the Australian community, and the protection of that community, justify Mr Agafili's expulsion from the country. The best interests of each of Mr Agafili's children, together with the other relevant factors which have been considered by the Tribunal under the terms of the Policy Direction, are not in any way sufficient to outweigh these primary and competing factors. Mr Agafili, a non-citizen, has abused the privilege of residence accorded to him by the Australian community. The community now has the right to be protected from the possibility of further criminal behaviour by Mr Agafili and to have him removed from it. Such removal should also send a strong deterrent message to other non-citizens contemplating similar offending. The decision under review is affirmed.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing   20-21 July 1999, 21-22 December 1999,
  11 February 2000, 03 July 2000,
  05-06 July 2000, 10 November 2000.
Date of last submission                 02 February 2001
Date of Decision  09 February 2001
Solicitor for the Applicant           Mr Ray Turner
Solicitor for the Respondent    Mr Nathan Cureton, Ms Juanita Kapel

[2001] AATA 91

9 February 2001

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Deportation

Criminal Liability

Risk of Recidivism

Protection of the Australian Community