Re Glusheski and Minister for Immigration and Multicultural Affairs - [2000] AATA 717

DECISION AND REASONS FOR DECISION [2000] AATA 717

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/978

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BLAZE GLUSHESKI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date18 August 2000
PlaceSydney

Decision      The decision under review is set aside.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – cancellation of visa – actual visa not identified – criminal deportation powers not available to the Department – failure to meet the character test – conviction and sentence for murder – applicant does not meet the character test – discretion should be used in the applicant's favour – removal of applicant from Australia would be inhumane - Australian community expectations would not be to remove the applicant from Australia.

Migration Act 1958 – ss 201, 499, 500, 501
Administrative Appeals Tribunal Act 1975 – s 37

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review a decision cancelling a visa. The actual visa said to have been cancelled has not been identified.
The applicant was born on 25 May 1938 in that part of the Balkans now known as the Republic of Macedonia.
According to a history taken in 1993 by Dr Lovell, a psychiatrist, he commenced school at the age of 5 but attended only until the age of 7. He then worked on his parents' farm until 1962. He left Macedonia, presumably for political reasons, and arrived in Greece later that year. He then stayed in a refugee camp until he was offered migration to Australia. He arrived in this country on 28 April 1963.
The basis of his permission to enter has not been established. He may have been granted a visa of some kind at the refugee camp in Greece (which is most likely) or he may have achieved refugee status on arriving in Australia. Mr Glusheski does not have a passport. It is not clear whether he is a refugee within the meaning of the Convention. Mr Glusheski was not able to enlighten the Tribunal as to the nature of the visa (if any) which he continued to hold because of the restrictions placed on any information which he wished to put forward in support of his application. In any event, I doubt whether he would have been in a position to identify the relevant visa.
There are of course a large number of types of visas with an ever-changing content. Designed to meet particular types of circumstances repeatedly encountered in practice, they carry with them different conditions and durations and are granted on different grounds. The delegate who made the decision cancelling the applicant's visa can have had no knowledge of the permission which he purported to cancel under section 501(2) of the Migration Act 1958. Neither the submission made to the Deputy Secretary (the delegate) by the case officer, nor the decision of the delegate itself, referred to what it was that was being cancelled. This appears to me to be a curious foundation for a decision. I will not deal with it on a legal basis, however, but will return to the topic when discussing the exercise of discretion.
Mr Glusheski has been in this country for over 37 years. It was decided to cancel his right to remain here under the terms of a section which requires that any review of the decision be carried out in accordance with a tight timetable, leaving little opportunity for further investigation or consideration. Mr Glusheski is currently in prison and was not legally represented. Although every effort was made beforehand by this Tribunal to advise him of the limitations imposed by the legislation, particularly those relating to the production of information in support of his application, it was apparent that he did not understand them. I will return to the question of the appropriateness of proceeding under this section when I discuss matters relating to the exercise of discretion.
He came to the attention of the Department because he is approaching the end of his sentence for murder. He was convicted of the murder of his wife on 2 July 1985 and was sentenced to penal servitude for life. Following a change in New South Wales law, he applied for re-determination of his sentence. On 4 April 1996, the Court imposed a minimum term of 15 years and an additional term of 5 years. His minimum term was completed on 24 February 2000. His parole hearing has not been finalised and he is currently serving the balance of his additional term.
There is no doubt that the murder was horrific, that the applicant attempted to cover his tracks and denied any involvement (not only at the trial but for many years until quite recently) and that the crime should be regarded at the highest level of seriousness.
To give some idea of the facts involved, the following extracts from the sentence given by O'Brien J illustrate the details:
"The elder three children attended the local primary school and spoke English well for their ages. The eldest girl known at school as "Big Mak", since her sister was Marika, gave evidence as the first witness in the trial. She was then aged nine and a half years. She was rather tiny for her age, but she was alert and intelligent. It was what she had said to her teacher at school when the children were taken there by the prisoner on the morning of Friday, 6th May, 1983 of a quarrel and a violent confrontation between the prisoner and the deceased on the previous night which drew particular attention to the prisoner as responsible for his wife's death. Her mother had put her to bed on the Thursday evening in her bedroom opposite the bathroom of her home. She was later awakened by the sounds of argument and her mother's screams. It became evident that this was not the first time she had heard this sort of thing and she was in some sort of fear of her father. She peeped through the keyhole of the door of her bedroom and saw the prisoner with what she called a spanner. Something, she realised, had occurred in association with the bathroom. The prisoner entered her bedroom, gave her a severe hit across the head and left taking some sheets from a box in her room. She did not see her mother again.
At about 8 a.m. on the morning of Friday, 6th May, 1983 a dead body which later was identified as that of the prisoner's wife was seen dumped on the side of a road in Lurnea some four kilometres from her home. Examination by scientific police disclosed the presence of two distinct tyre impressions in the unmade gutter line near the body. Of these impressions plaster casts were made and a sample of earth beneath these casts were removed. The tread of a rear tyre of the prisoner's car matched one of these casts and soil matched precisely mud removed from the wheel arch above this tyre. Considerable time was devoted to the evidence of two rival expert geologists and soil scientists upon the comparison of these two samples which as I heard the evidence did no more than confirm what was otherwise a very strong Crown case. The evidence of the forensic biologist of his examination of the house disclosed traces of blood in the lounge, kitchen, hallway and bathroom of the house and upon a Stillson wrench in the storeroom beneath the house. The identification of some of this blood as corresponding in the several groupings analysed with that of the deceased was a major difficulty which the prisoner was quite unable to overcome.
The prisoner had gone to the Green Valley Police Station at 1.30 p.m. on Friday, 6th May, 1983 and reported to a constable there that his wife was missing. He had his youngest child with him. He gave a description of his wife. He said she had gone out about 3 p.m. on the Thursday, just before the children came home from school. She had not come home on Thursday night, he said, not had she returned on the Friday. It was this which suggested to the detectives the identity of the body the finding of which they were already investigating.
The detectives spoke to the prisoner at about 2.45 p.m. He said his wife had gone shopping. He went to the school at about 2.45 p.m. to pick up his children. He came back from school but she was not there. He had not seen her since. He cooked the evening meal for the children and put them to bed about 8 p.m. He drove to the local hotel and bought a bottle of beer. He went to bed at 9.30 p.m. and slept until 7 a.m. He was told by the detectives that a body corresponding with the description he gave them in some detail of his wife had been found that morning in Lurnea and it may be that of his wife. He answered: "I do not know. You say." He was told that someone who lived nearby would be asked to have a look at this woman. He answered: "You say. You do that". He impressed the detectives as showing no concern for this information. They said they wanted to go to his home and he replied: "You do what you want to do". They went with him to his home at No.11 Cartwright Avenue and noticed the mud on his vehicle. They informed him that a neighbour had seen the dead woman and had now identified her as his wife. He made no answer and still showed no apparent concern. Other police at the house found the Stillson wrench to which I have referred in the storeroom beneath the house. A scientific officer tested areas with haemasticks and found positive reactions for blood.
…
The same neighbour some six weeks before the death saw the prisoner and his wife and the child Marika walking along the street one morning when he kicked her in the leg so forcibly that she fell. She grabbed hold of a street pole. She got herself up and took the child across the road but the prisoner followed her and, taking her by the shoulder, marched her forcibly along the street.
On Wednesday, 4th May, 1983, the day before the deceased was said to have gone missing, the next door neighbour heard a loud argument from within the home near nightfall between the prisoner and his wife. He did not understand what passed between them since he did not understand the Macedonian language. This was not the first time he had heard such an argument. After a time the deceased ran out of the house into the backyard. She was limping and seemed in pain. She was crying and distraught. He noticed she had a blackened eye.
On the night of Thursday, 5th May, 1983 at about 9.20 p.m. another neighbour took her two small dogs out onto her front lawn. She was not then affected by the sound of television. Whilst there she heard loud piercing screams from the direction of 11 Cartwright Avenue, three doors away. This corresponded with the evidence of the child Makedonka of her mother's screams that night.
The evidence of the forensic biologist was to the effect that there was blood detectable on the floor of the prisoner's car, but that it had been diluted by a washing of the car and the floor was still damp. On a curtain in the lounge room he found evidence of blood as well as on the floor of the kitchen and other points I have mentioned. In the bathroom in particular he found evidence of extensive distribution of blood and a considerable endeavour to wash the room down. On the underside of the bathroom basin and on the edge of the carpet of the hallway where it met the bathroom floor he was able to obtain small particles of blood capable of full analysis and they corresponded in all respects with the blood of the deceased. It was apparent that the prisoner had cleaned up the various rooms and had washed the curtains and kitchen mats in an endeavour to remove blood and traces of blood from the killing of his wife.
He removed the body from the house to where it was found by his car in the early hours of Friday morning. The next door neighbour distinctly heard the car backing out of the driveway at about 2 a.m. and returning some time later. The car had a distinctive engine sound which the neighbour, who was experienced in the maintenance of automotive equipment, attributed to a slipping fan belt.
The injuries suffered by the deceased were in two categories. One category comprised two stab wounds to her left chest which were inflicted before death. They each penetrated the lung cavity and one reached the back of the lung, indicating a knife with a blade six or seven inches long. Neither affected her heart. They caused haemorrhages from which she would have survived with appropriate medical treatment. They did not cause death. The other category comprised of the major injuries which caused death. They were four depressed fractures of the skull behind the left ear, at the top of the scalp, the frontal bone and the base of the skull causing extensive brain contusion and haemorrhage. There were also fractures of her cheekbone and lower jaw as well as other facial injuries. Two of the major facial injuries showed impressions of the instrument by which they were inflicted. They were shown by photographs and visual comparison at post-mortem to have precisely corresponded with the large and heavy Stillson wrench to which I have already referred.
The statement made by the prisoner to the jury was singularly unimpressive. He gave an account mostly corresponding with what he had earlier claimed, of having an harmonious relationship with his wife "respecting her like a red Easter egg", as he said, and having done her no harm. He offered no explanation of the extensive evidence which implicated him.
This summary of the evidence indicates that there was no prospect of an acquittal for the prisoner. He murdered his wife after a quarrel with her and did so in a singularly brutal fashion by stabbing her with a knife and then by delivering a number of severe blows to her head and face with a crude and heavy tool which he had fetched. There is nothing that I can see in the circumstances of this offence which indicates any mitigating circumstances which in any way reduce his culpability for this murder.
…
It seemed clear to me from hearing the evidence at the trial that the prisoner had little affection for his wife and treated her quite contemptuously. He was selfish and self-opinionated and at least after he became no longer in employment, which began soon after the birth of their fourth child, he resorted to drink. This exacerbated the problem and after a number of violent episodes he resorted to the extremities manifest in the terrible injuries which he inflicted on his wife. He manifests no remorse for this deed but maintains the pretence that she failed to re-appear after going out to shop, a pretence which is patently untenable."

The murder took place on 5 May 1983, almost twenty years to the day after the applicant became a lawful resident in this country. Section 201 empowers the Minister to order the deportation of a non-citizen where he is sentenced to imprisonment for a period of not less than one year and has been a permanent resident for a period of less than ten years. As Mr Glusheski had been a permanent resident for much longer than that period, the provisions of section 201 were not available to effect his deportation.
It seems clear that the delegate sought to achieve the same object by relying on section 501 to cancel Mr Glusheski's supposed visa. Cancellation of a visa has the same practical effect and would shortly lead to the deportation or supervised departure of the non-citizen.
The course which the delegate took was legally open to him. As was made clear by a Full Court in Minister for Immigration v Gunner (1998) 84 FCR 400, the two sections represent two distinct heads of power. It is not suggested in this case that the delegate resorted to section 501 for an improper or extraneous purpose. If such a purpose is alleged, a heavy onus is borne by one who brings the charge (Oates v Lamb 30 AAR 440 at 452). As Stephen J said in Salemi v MacKellar (No. 2) (1977) 137 CLR 396 at 446-447 it would be necessary to show that the decision was given for reasons extraneous to the exercise of the power of deportation before the decision became examinable on that ground.
As it happens, it is not possible to identify the reasons for the decision. Normally in applications brought to this Tribunal, a decision maker is bound to give a statement under section 37 of the Administrative Appeals Tribunal Act 1975 setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. Subsection 500(6D) of the Migration Act provides that section 37 of the Administrative Appeals Tribunal Act 1975 does not apply if an application is made to this Tribunal for a review of a decision under section 501. Consequently, the decision maker is not obliged to give reasons for his decision. Consistently with this concession, no reasons are given. Instead, the applicant is provided with a copy of a document prepared by the case officer entitled "Issues for Consideration for Possible Visa Cancellation". This document is submitted to the delegate. It summarises the relevant facts as seen by the case officer and lists factors both for and against the desirability of cancellation. Part E of this submission consists of a number of alternative propositions put before the decision maker. All he is called upon to do is to circle the appropriate word. In this case, the delegate circled the word "agreed", indicating that he agreed that he was not satisfied that the applicant passed the character test and indicating that the visa (which was not identified) should be cancelled. There is no way one can detect from the face of the document which of the submissions made by the case officer were adopted and which rejected. There is no way an applicant can tell why the delegate finally arrived at the relevant decision. Nevertheless, having regard to the judicial dicta to which I have referred, I am prepared to assume that the decision, for whatever reason it was arrived at, was not made for an improper or extraneous purpose.
Although the present decision under review might be termed a "disguised deportation" (similar in reasoning to the "disguised extradition" discussed in Schlieske v Minister for Immigration and Ethnic Affairs 84 ALR 719 at 724) it would need to be shown that the delegate acted, for example, "out of fit of pique" (to use the words of the Full Court in Gunner). Having regard to the serious crime committed by the applicant, it has to be said that there is material upon which the Minister could be satisfied that he was not of good character. Indeed, subsection 501(7), which defines a substantial criminal record as a sentence to a term of imprisonment of twelve months or more, has application in the present circumstances. There is no doubt that the applicant does not pass the character test.
Nevertheless, the resort to section 501 when the delegate is precluded from relying on section 201 has serious consequences for the person affected. Ministerial Directions under both sections have been given under section 499. Direction Number 9, dealing with deportations, directs the decision maker specifically to take into account hardship expected to be suffered by the potential deportee. Direction Number 17, relating to section 501, makes no specific reference to hardship to be suffered by the person primarily affected. The only reference to hardship is in paragraph 2.17(c) and that is restricted to hardship caused to immediate family members. Thus, a person who has been in this country for less than ten years is entitled to be heard as to his own hardship before he is deported. A person who has been in this country for twenty years before committing a deportable offence is not entitled to be heard specifically as to his own hardship before being virtually deported. I will return to this anomaly later.
Having established that the applicant does not pass the character test, the matters to be decided relate to the exercise of the residual discretion. Matters to be taken into account in that exercise are also set out in Direction Number 17.

There are three primary considerations, namely the protection of the Australian community, the expectations of the Australian community and the best interests of any relevant children. The applicant had two children in his first marriage and four children in his second marriage to the woman he killed. All of them are now over the age of 18, the age considered in paragraph 2.13 to be the end of the age of childhood.
I am therefore to consider the protection of the Australian community. In doing so, I must consider the seriousness and nature of the conduct. As I have said, Mr Glusheski's conduct is of the utmost seriousness. I am then to consider the likelihood that his conduct may be repeated and whether there is any risk of recidivism.
He has been a compliant prisoner. Nothing in his record gives cause for concern except that he has, from time to time, suffered mental illnesses. Dr Lovell first examined him at Junee Correctional Centre on 10 August 1993. He examined him on three further occasions during that year but has not seen him since. Mr Glusheski in cross examination recalled psychological problems in Bathurst Gaol before he was transferred to Junee, which manifested themselves in delusional behaviour. He was under various delusions concerning attempts to control him with computers, attempts to spray deleterious substances into his cell and to put substances into his tobacco and having his "feelings" affected by treatment he received. By these "feelings" he apparently meant libidinous feelings. Dr Lovell diagnosed paranoid schizophrenia and prescribed appropriate medication. Mr Glusheski has been on psychotropic substances ever since.
Dr Lovell gave evidence by telephone. Although he had not seen the applicant for some seven years, he was prepared to say that there was a substantial risk of a recurrence of Mr Glusheski's mental problems if he ceased to take his medication. He considered that this was a possibility if Mr Glusheski and those who were to look after him did not have a sufficient insight into the existence of these delusions.
On the other hand, Dr Ahmed, another psychiatrist, examined Mr Glusheski as recently as February 2000 in connection with his parole application. In his view, his current mental status examination failed to reveal any psychiatric symptoms. Dr Ahmed doubted very much whether Mr Glusheski had suffered from mental illness in the past, except for reactive depression from time to time, which would be a normal reaction. Dr Ahmed did not foresee any problem because of his introverted and dependent personality and did not consider him a risk either to the foster parents of his children, to his own family or to the community in general.
Both psychiatrists remarked upon Mr Glusheski's general personality. Dr Lovell viewed him as "a simple, somewhat unsophisticated man of limited intelligence who denies his crime in a very primitive way" (this denial has been reversed in recent times). Dr Ahmed described him as "a man of dull intelligence, uneducated with limited vocabulary, concrete thinking, unsophisticated with introverted and dependent personality".
The time restrictions contained in section 500 prevented the applicant (if he was ever able to do so) from putting forward any information of which I could take account, unless it was set out in a written statement given to the Minister at least two business days before the hearing. Mr Glusheski reads neither English nor Macedonian. I did not ask him whether he could write. I doubt whether he can. He filed no statement by himself or by any other person. The same section, in my view, precluded me from allowing him to question the psychiatrist, Dr Lovell, when he gave his evidence. Whether this is fair or unfair I feel that I am bound by the terms of the statute.
The result of these time limitations is that it was impractical not only for the applicant to produce any evidence as to recidivism, it was also impossible for the respondent's solicitor to obtain any up-to-date psychiatric evidence. The material which was put forward came from existing records of the Corrective Services Department.
Time restrictions, however, do not apply to the New South Wales Parole Board. There was, I was informed, a hearing in February 2000 in which Mr Glusheski was unsuccessful in obtaining parole. The matter is again to be considered in September. It will be the function of the Parole Board, of course, to assess the risk to the community (if any) in releasing Mr Glusheski. On the latest report of the psychiatrist, Dr Ahmed, it would seem that the Board would devalue such a risk. For my part I see no reason why the delegate should not be guided by the decision to which the Board will come. The Board has far more information before it and has far more time available to it for investigation than had the delegate or this Tribunal. If the Board considers that the Australian community will be protected upon release of the applicant, then I consider it a reasonable conclusion for this Tribunal to follow that decision.
The respondent's officers interviewed the applicant's two brothers and sister who live in New South Wales. For some time now, Mr Glusheski has been staying on day leave and weekend leave with his brother, who lives near Port Kembla. Mr Glusheski said that his brother has a four bedroom house where he will sleep and where his brother can look after him. His brother has grown-up children who were university educated and who are now working. His brother confirmed in interview that he was prepared to look after the applicant.
It was submitted on behalf of the Department that the relevant brother, Bozin, did not have sufficient insight into the applicant's conduct, nor did he accept the gravity of the offence committed by the applicant and that, therefore, the brother would be unable to exert influence over him to assist his reintegration into society.
If the decision under review is set aside, the applicant will continue to serve his additional term until such time as he is released on parole or until such time as that additional term expires. If he is released on parole, it will no doubt be on conditions of reporting and under conditions of supervision by a parole officer. It seems to me that if he is to be "reintegrated into society" through the good offices of his brother, he will be assisted as well by the supervision of a parole officer. If the community of New South Wales can rely on such supervision then, in my view, the Minister is entitled to be equally reliant.
On the whole of the evidence, therefore, I conclude that there is not a high likelihood of recidivism.
The third element in considering the protection of the Australian community is the question of general deterrence. The crime of murder is so abhorrent that it does not need the virtual deportation of a non-citizen guilty of that crime in order to inhibit the commission of a like offence by other persons. In my view, it is fanciful to suggest otherwise.
There remains the criterion which is headed "Expectations of the Australian Community". In his Second Reading speech, the Minister stated that the amending Act which introduced these provisions would enable him "to give precise written directions on what weight is to be given to each of these factors". The phrase "Expectations of the Australian Community" can hardly be described as a precise indication of a criterion. Paragraph 2.12 does no more than suggest some of the more negative expectations of the community in these words:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision makers should have due regard to the Government's view in this respect."

The "precise written directions" suggest situations where visa cancellation may be appropriate. Paragraph 2.12, however, cannot have been intended to mean that simply because a heinous crime has been committed, that without further inquiry, the criminal should be removed. This would amount to mandatory deportation. It would negate the whole basis of administrative review. I must assume, therefore, that paragraph 2.12 is not exhaustive in setting out the expectations of the Australian community.
To approach this aspect is necessarily to invoke subjective views. It is not possible to have objective evidence of the expectations of the whole community. As the delegate is entrusted with coming to his own view on the nature of those expectations, so also I must apply my mind to what I understand the community expects. Certainly there is a prima facie view that a non-citizen murderer should be removed from Australia. There are, however, many other matters to be taken into account under this heading. Above all, I consider that there is an expectation in the Australian community that the legislation will be administered in a fair and humane manner.
Earlier in these reasons I pointed to the fact that the delegate purported to cancel a visa in vacuo. Without knowing what visa the applicant held, the delegate purported to cancel it. This hardly seems a fair approach. Indeed it would be alarming if such a free floating decision came to be regarded as the norm. Although the delegate is not bound to give reasons for his decision, fairness, if not basic legality, would seem to require that the subject matter of the decision be identified. Furthermore, the manner in which the delegate approached his task meant that the applicant was discriminated against in contrast with those who had been in the country only half as long. This also seems unfair. It would appear unlikely that section 501 was intended to put long-term residents at a disadvantage compared with more recent arrivals. It seems fairer to believe that if Mr Glusheski is now a problem, he should be regarded as Australia's problem.
There are also a number of factors peculiar to the applicant which, in my view, the Australian community would expect to be taken into account:

In his culture, he is an old man at the age of 63. If his application for parole is unsuccessful and he is obliged to serve the balance of his term, he will then be aged 68.
He is illiterate and of low intelligence.
His ability to integrate himself into Macedonian society would be poor. He has been in prison now for more than 15 years. Without the help of any family or government agency, his prospects would not be encouraging.
He has been away from his homeland for 37 years.
More than half of his life has been spent in this country.
All his family are in Australia. He has brothers, sisters and children here, together with an extended family from those siblings. He has no family at all in Macedonia.
He suffers from poor health. Apart from his questionable psychological condition, he has hypertension and asthma.

In view of these factors, and in view of the other countervailing factors, it seems to me inhumane to carry out an administrative act which would have the practical effect of deporting him to a country with which he has lost all contact. I do not believe that the Australian community would expect such inhumane administration.
For the above reasons, I consider that the decision under review should be set aside.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President).
Signed:   .....................................................................................
  Dominika Rajewski, Associate
Date of Hearing  07 August 2000
Date of Decision  18 August 2000
Representative for the Applicant              Self-represented
Solicitor for the Respondent  Mr Michael Snell
  (Sparke Helmore)