Reu and Minister for Immigration and Multicultural Affairs - [2000] AATA 281

DECISION AND REASONS FOR DECISION [2000] AATA 281

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/1182

GENERAL ADMINISTRATIVE DIVISION       )
           Re      REUERA REU
  Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date12 April 2000
PlaceBrisbane

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

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – value of deterrence – best interests of the child – balancing of factors – hardship to applicant.

Migration Act 1958 – s 200
Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCS 1713

REASONS FOR DECISION

12 April 2000 Deputy President DP Breen, Presidential Member

This case was heard by me on 27 and 28 January 2000 in Brisbane. Written submissions were received from Counsel for the applicant on 9 February 2000 and by Counsel for the respondent on 15 February 2000. The matter was resumed for submissions in reply on 16 February 2000.
Mr Reuera Reu is 26 years of age and a New Zealand citizen. He has been a resident of Australia since June 1995. He seeks a review of a decision by a Delegate of the Minister for Immigration and Multicultural Affairs made on 5 October 1999 to deport him from Australia under Section 200 of the Migration Act 1958.
At the hearing the applicant was represented by Mr Chris Wilson of Counsel who was assisted by Mr Alan Mead. The respondent Minister was represented by Ms Bridget Quayle, in-house Counsel.
Mr Reu gave oral evidence before me; so, too, did Mr John Uri, an expert on Pacific Island Culture; Mr Jeffrey White, a friend and potential employer of the applicant; Ms Alanna Mead, the applicant's fiancee; and Mr Alan Mead and Mrs Beverley Mead, Alanna's parents; Ms Anna Mansell, a family friend; Mr Ian Rankin, Elder and Session Clerk at Acacia Ridge Presbyterian Church; Mr Stephen Teale, Pastor of the Acacia Ridge Presbyterian Church; and Mr Clifford Cumpstay and Mrs Jean Cumpstay, Alanna's grandparents.
The following documents were also received into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Schedule of charges by the New Zealand Police
Exhibit 3 Schedule of charges by the New South Wales Police
Exhibit 4 Correctional Services Report
Exhibit 5 Statement of Mr R Rue
Exhibit 6 Two letters written by Mr Rue to Mr and Mrs Mead
Exhibit 7 Bundle of documents including pay slips
Exhibit 8 Bundle of documents evidencing completion of courses whilst in
Prison
Exhibit 9 Transcript of submissions on sentencing
Exhibit 10 Cards from Mr Rue to his fiancee and son
Exhibit 11 Indictments for deportation offences
Exhibit 12 Confirmation of release date
Exhibit 13 Family photographs
Exhibit 14 Reference from Alanna Mead's employer
Exhibit 15 Statement of Mr I Rankin
Exhibit 16 References from Mr S Teale and Notice of Intention to Marry
Exhibit 17 Statement of Beverley Mead
Exhibit 18 Statement of Mrs A Coco
Exhibit A Letter from Work and Income New Zealand

The applicant Ministerial Direction is Direction 9 – General Direction – Criminal Deportation. This direction states that the primary considerations are:
(a) the expectation of the Australian community; and

(b)in cases involving a parental relationship between a child or children and the potential deportee, the best interest of the child or children.

There are two aspects to community expectations. Firstly, the expectation that the community will be protected and not put at risk and, secondly, the expectation that non-citizens who commit and are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.

The first consideration in relation to the protection of the Australian community is the seriousness and nature of the offences committed by the potential deportee. I shall now set out the history of the applicant's criminal conduct as reflected by his convictions.
In New Zealand, the applicant was charged with theft of property, unlicensed use of a motor vehicle, false pretences and use of a document. Outstanding charges exist relating to an alleged assault on his girlfriend in 1995.
In Australia, the applicant's criminal history begins in 1995 and consists of assault, breaches of domestic violence orders, false pretences and stealing, as well as a number of charges for breaching the Bail Act. In 1999 he faced 6 charges of break, enter and steal; 6 charges of entering premises to commit an indictable offence and break; and a charge of entering premises and committing an indictable offence and breaking whilst being armed with an offensive weapon and in company and using personal violence. Further, he was charged with deprivation of liberty, unlawful use of a motor vehicle and breach of a suspended sentence.
The offences of entering premises with the intent to commit an indictable offence and breaking whilst armed with an offensive weapon and in company with the use of personal violence committed in February 1998 are the basis for the deportation order. This was a violent crime premeditated by his co-offenders. Mr Reu did not assist in planning the crime; in fact, he was not aware of his co-offenders' intentions until after they arrived at Cocos Fruit Shop. He was armed with a tomahawk during the whole ordeal but he did not inflict actual violence against any of the victims and he was sentenced on this basis. It was the co-offender who locked the workers in the freezer and drove a forklift to the door and stuck the tines through in order to lock it. Further, it was the co-offender who dragged Mrs Coco, a 51 year old woman, across the room by her hair with a knife at her throat. This was a truly abhorrent crime and the applicant did not attempt to diminish this fact. He took full responsibility for his part in the offence.
In relation to this offence, the applicant's admissions to the Police not only led to his arrest, but also to the identification and arrest of his two co-offenders, two brothers. Before the applicant spoke to the Police, they had no real leads as to who was behind this robbery. The applicant has given evidence in the committal proceedings and at the time of this hearing was intending to give evidence against the brothers at their trial. I am informed that this is telling evidence against the brothers. Mr Wilson submitted that this willing co-operation with Police was a sign of the applicant's rehabilitation and went some way to appeasing the abhorrence with which the Australian community would view the applicant's role in this crime.
The second consideration in relation to the protection of the Australian community is the risk of recidivism applicable to the applicant. During his time in prison, Mr Reu has participated in an anger management course, a cognitive skills course and Bible College. Reports in evidence from these courses all present the view that Mr Reu is making a concerted effort to redress his offending behaviour and genuinely desires to be a responsible law-abiding citizen in the future.
Mr and Mrs Mead have offered the applicant work in their sporting business and accommodation in their house. They are willing to support him emotionally and financially in his rehabilitation if he is allowed to remain in Australia. The support they have demonstrated to date, including assisting the running of his court cases and this appeal, as well as frequent visits to him in prison, leaves the Tribunal in no doubt as to the sincerity of their offer of support. Their extended family and church community have also pledged their support for Mr Reu. This is an extended family and community which Mr Reu had already become an active part of, after the commission of the deportable offence but before his incarceration.
On the evidence, this is the first time Mr Reu has experienced a loving and supportive family environment, his childhood being marred by abuse and neglect, and he has responded very positively to this new environment. Further, Mr Reu has, since moving into the Meads' house in October 1998, cut all ties with people he knew whilst involved in crime and has no desire to renew contact with them in the future. With a supportive network like this in place, a removal of criminal friends and positive employment opportunities for the future, the risk of recidivism must be assessed as lower than one might initially expect.
These were factors which Judge Wolfe considered significant. She made the following comments in her sentencing remarks:
"These offences were committed when you were 24 or 25. Your circumstances, it would appear, since committing these offences have changed radically and when I say your circumstances have changed, I mean your whole life has changed. You have been in trouble with the Police for many years. That is not excusable but it is explicable…
Probably the biggest hope for you is your defacto, Alanna, your baby and Alanna's parents, who from the reference given, seem to be well established business people, pillars of the community and extremely kind and sensible. They have taken you into their home and they support you greatly, as does the Presbyterian Church. So, all that points to your being able to become a productive and happy member of our society on your release from prison."

The final aspect of the protection of the Australian community is the effect deportation might have in deterring other non-citizens from committing crimes in Australia. The majority of cases of this kind coming before this Tribunal in Queensland involve applicants who are New Zealand born males who get involved in criminal activity in Australia. The vast majority of applicants to this Tribunal seem to have no awareness of the liability to deportation until after their respective convictions and sentencing. Surely something more can be done to inform persons from overseas who are receiving the right to live in Australia permanently that if they incur criminal law sanctions which attract the application of Section 200, they are liable to deportation. If the deterrent effect is to be operative at all, this is a fundamental requirement.
Further, in this case it is clear that Mr Reu was not the instigator of crime, but rather a follower. It was due to his keeping company with individuals involved in crime that led to most of his criminal activity. As such, his deportation is unlikely to result in deterring his co-offenders and other former friends from criminal activity.
The Australian community does expect to be protected from violent crimes such as this and generally expects that non-citizens who commit such crimes will be removed from Australia. However, the Australian community does recognise that despite extensive criminal histories a person may respond positively to rehabilitation and have a lower risk of recidivism, particularly when they remove themselves completely from the criminal sphere of activity.
The second primary consideration is enlivened in this case as the applicant has a 16 month old son who is an Australian citizen. The Ministerial policy suggests that the starting point for this consideration is that it is best if the child remain with both parents, while it has been argued that it is in the best interest of the child, Elijah, that he remain in Australia. Elijah and his father do have a close bond. The applicant was a very active participant in Elijah's care during the first few months. Since Mr Reu's incarceration, Elijah has seen his father regularly and has a positive relationship with him. Elijah and his mother have an extensive family network here in Australia which will provide financial and emotional support for them both. There is no such support for them in New Zealand and relocating there would cause great upheaval for Elijah who is in daily contact with his grandparents and great grandparents. Further, Elijah suffers from bronchitis and occasionally asthma which the cold New Zealand climate would be likely to aggravate.
It is preferable for a child to be raised in a stable dual parent home and if the applicant were to be deported this would not be possible. Although this primary consideration does not mean that becoming a parent of a child born in Australia allows the applicant to escape this country's criminal deportation laws, the best interests of the child are an issue which the Australian community does expect to be given significant weight. It is clear from the preceding paragraph that it is in the best interests of Elijah that he remains in Australia and that his father also be permitted to remain here.
The secondary considerations include the degree of hardship which would be suffered by the applicant and by Australian citizens or permanent residents. The applicant's father, stepmother and brothers and sisters reside in New Zealand. However, his relationship with his parents is not particularly strong. He has only seen his father twice in the last 5 years and his stepmother was abusive to him during his childhood. He does not have a very close relationship with his brothers and sisters either. There are no assurances of employment, financial support or even shelter for him upon his return to New Zealand. On the other hand, he has a close relationship with Alanna Mead and they intend to marry if he remains in Australia. Her family has offered employment and extensive emotional and financial support to Mr Reu and he has ties to their church community. His deportation would be likely to not only sever his relationship with Ms Mead, who sees relocating to New Zealand to be a practical impossibility, but would also deprive him of this support.
There are a number of Australian citizens who would suffer hardship if the applicant were deported. Alanna Mead would suffer the loss of her relationship with the applicant and have to raise her son as a single mother if she does not relocate to New Zealand. If she follows the applicant she will be separated from her close extended family, who, due to job commitments will not be able to visit often. Further, she will be in a new country, with no job, no support network and will have to rely on childcare facilities if she wishes to enter the workforce.
Mr and Mrs Mead will have to give extra support to their daughter and assist greatly in the raising of their grandchild if Alanna stays in Australia. If she goes to New Zealand they will be separated from their daughter, son-in-law and grandson. Due to their business commitments, it will be difficult for them to visit often and it is unlikely both Mr and Mrs Mead would be able to visit at the same time. Finally, Alanna's grandparents, Mr and Mrs Cumpstay, would lose the daily contact they have with their grand-daughter and great grandson if Alanna was to move to New Zealand with the applicant.
It is the Tribunal's task to balance all these considerations and decide whether or not to exercise the discretion in the applicant's favour. Justice Sackville in the recent Federal Court decision of Bustescu v Minister for Immigration and Multicultural Affairs[1999] FCA 1713 gave the following assistance on the manner in which this balancing task is to be undertaken and the impact of the relevant Ministerial Direction:
"….. the Direction must be read as preserving the discretion of the decision-maker to take into account all the relevant circumstances of the cases and, if otherwise appropriate, to hold that the hardship likely to be experienced by a potential deportee outweighs even serious criminal conduct."
I heard another case in the same week as I heard Mr Reu's case which also involved a young New Zealand male who had committed armed robbery. In the former case, the decision to deport the applicant was set aside as the robbery itself was at the lower end of the scale of such robberies, the applicant showed considerable remorse and he was in a supportive relationship with an intelligent young woman of considerable achievement. In Mr Reu's case, the crime is undoubtedly more serious. However, his role in it was marginal. He has also shown considerable remorse as to his conduct. Furthermore, as recognised by the Sentencing Judge, he has completely turned his life around since the commission of the offence. The support network offered to Mr Reu is far more extensive with not only a supportive fiancee, but also material and emotional support from her family members and their church community.
The Tribunal acknowledges that the offence committed by Mr Reu is a serious crime and one which the Australian community would abhor. However, the following factors favour the exercise of the discretion not to deport in this case. Firstly, the applicant has shown very positive signs of rehabilitation and no longer has any contact with his criminal associates. He has great opportunities if he remains in Australia in relation to employment and a supportive family. These factors point to a lower risk of recidivism.
He has a young child who is an Australian citizen whose best interests would be served by the applicant remaining in Australia. Deportation would potentially render the applicant homeless, jobless and without any support network, given his poor relationship with his family in New Zealand. The fact that his fiancee feels it is a practical impossibility to relocate to New Zealand would result in loss of contact with his son, the ending of his relationship with his fiancee and the loss of the extensive support offered to him in Australia. His deportation would result in the splitting up of a family, whether Alanna Mead chooses to stay or to relocate to New Zealand. On balance, it is clear that the only just outcome in this case is to allow the applicant to remain in Australia.
It is important to note that this is not the end of the matter as the conviction for the deportable offence will remain forever on his record, as will his liability to deportation. Any infringement of the criminal law in the future could see Mr Reu subject to another deportation proceedings and it is highly unlikely that he would be given another chance.
The decision under review is set aside. It is not sustainable on the overall evidence presented to the Tribunal.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  28.1.00, 29.1.00, 16.2.00
Date of Decision  12.4.00
Counsel for the Applicant        Mr C Wilson
Rep. for the Applicant              Mr A Mead
Counsel for the Respondent    Ms B Quayle, Departmental Advocate
Solicitor for the Respondent