Rivera and Minister for Immigration and Multicultural Affairs - [2002] AATA 261

DECISION AND REASONS FOR DECISION [2002] AATA 261

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1451

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SALVADOR ERNESTO RIVERA
  Applicant
           And    MINISTER FOR IMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon. R N J Purvis Q.C., Deputy President

Date18 April 2002
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  The Hon. R N J Purvis Q.C.
  Deputy President
CATCHWORDS
IMMIGRATION – criminal deportation – primary considerations – seriousness and nature of crime – medical condition of Applicant – community expectations – risk of recidivism – other considerations – position if Applicant remains in Australia – hardship on Applicant in the event of deportation – degree of hardship on family of Applicant in the event of deportation – international obligations

Migration Act 1958 – sections 200, 201, 499
Ministerial direction No 9 – Criminal Deportation under Section 200 of the Migration Act 1958
Refugee Convention – Article 33(1)

REASONS FOR DECISION

The Hon. R N J Purvis Q.C., Deputy President

the application

This is an application made by Salvador Ernesto Rivera ("the Applicant") seeking review of the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 21 August 2000. By such decision a deportation order was made against the Applicant pursuant to section 200 of the Migration Act 1958 ("the Act").
In the course of the delegate's reasons for the decision it was stated (T43 pp129-134):
"PRIMARY CONSIDERATIONS
COMMUNITY EXPECTATIONS
Seriousness and nature of the crime
Mr Rivera's offence of Aggravated Sexual Assault is a serious offence as outlined in the Minister's General Direction No 9.
…
A sentence administration print-out provided by the Department of Corrective Service on 7 June 2000 states that Mr Rivera had 48 internal offences recorded against his name. Of concern is that the offences are predominantly of a violent nature.
…
In view of the above it appears that Mr Rivera has made no attempt to address his violent behaviour nor accept the consequences of alcohol consumption. Coupled with the fact that he believes that rehabilitation is not acquired in goal and that he has learned to become angry whilst in goal, it is submitted that his risk of recidivism is assessed as high.
…
Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community
…
Mr Rivera's offence is such that the community would expect that he be deported from Australia. It is an offence prescribed as a serious offence within the Minister's General Direction No 9.
…
OTHER CONSIDERATION
Degree of hardship which may be suffered by the potential deportee
…
He had no settlement problems upon arrival [in Australia], as he was only a child. He further stated that he has become used to living in Australia and that if he were deported it would be his worst nightmare. He does not know who would be able to assist him with resettlement if he were deported. He also stated that whilst he has no friends he is close to his mother.
There is also every indication that Mr Rivera sustained some brain damage following a car accident in 1993. As such, it maybe that medical services of the nature required by Mr Rivera are either not available or not the same standard as available in Australia.
…
Degree of hardship to any Australian citizen or permanent resident, including the deportee's family
…
At interview Ms Rivera [the Applicant's mother] stated that she cried when she received the news that her son may be deported.
…
Ms Rivera also stated that she can not offer her son financial assistance as her husband is a pensioner and although she does not know what assistance she can offer him, he will reside with her upon release…
…
International obligations
Mr Rivera entered Australia on 19 September 1985 as the holder of a K4722 migrant visa (dependent child, special humanitarian program, Central Americans). He is therefore considered to be a refugee within the terms of the Refugee Convention.
…
Onshore Protection Section, Central Office, examined Australia's obligations under section 33(1), in particular Mr Rivera's claim that his family was targeted by the authorities because of his uncle's alleged anti-government activities.
...
Onshore Protection assessed that Australia would not breach its international obligations under the International Convention on Civil and Political Rights or the Convention Against Torture if he were returned to El Salvador."
The order for deportation reads (T3, p8):
"…
And whereas the said Salvador Ernesto Rivera was convicted at Liverpool District
Court on the nineteenth day of June 1995 of an offence, namely Aggravated Sexual Assault (2 counts), which was committed on the twenty third day of September 1994, for which he was sentenced to a minimum term of six years with an additional term of three years for count 1 and a fixed term of four years for count 2.
AND WHEREAS at the time of the commission of the said offence the said Salvador Ernesto Rivera was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand citizen exempt non-citizen, or special category visa holder for less then ten years.
…"
The Applicant in his reasons for making the present application stated (T1, p5):
"The decision by the Department was based entirely on the criminal offence that I was convicted of and that I am now serving a sentence.
The Department failed to take into account my medical condition due to an accident that is still in litigation and the fact that due to my medical condition I would not be able to seek employment in El Salvador nor would I be able to afford the ongoing medical costs that would be incurred by my condition.
I acknowledge the fact that I committed a crime of the type that is aberrant [sic] to the Australian public and that I must be punished and have been by the court, but now I am being further punished by being sent back to a country in which I will have no future.
I have worked all my life since leaving school and if not for the crimes I committed which I feel has something to do with my early childhood in El Salvador and then the injury I suffered due to the accident, I would have become the type of citizen that is a credit to this country…"

the hearing

At the hearing of the present application the Applicant was represented by Mr Kevin Duncombe of counsel, a migration agent, the Respondent by Mr Leonard Leerdam, solicitor.
There was introduced into evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the same being marked T1 to T46). The following written material was tendered by the parties as exhibits, namely:
Exhibit No  Description          Date
A        Various witness statements attached to a letter by Mr Kevin Duncombe (6) 22 January 2002
B        Report Dr Bruce Westmore           17 October 2002
Affidavit Mr L Leerdam 15 February 2001
Report Dr Peta Mead 6 November 2001
Amnesty International Report covering events from January – December 2000

The Applicant, Dr Bruce Westmore, forensic psychiatrist, Ms Peta Mead, intern psychologist at Goulburn Correctional Centre and Mrs Blanca Rivera, the Applicant's mother, Mr Manual Rivera, his half-brother, Mr Victor Rivera, his stepfather, Mrs Lidia Quintanilla, his grandmother, Mr and Mrs Wilfredo Quintanilla, his uncle and aunt and Ms Ana Campos, a friend, gave oral evidence and where cross- examined.
factual situation
The Applicant was born in El Salvador on 4 August 1974, at a time when his mother Mrs Blanca Rivera was only 14 years of age. She was a single parent, the Applicant's father having left his mother before his birth. Mother and son then lived with her parents. At this time the civil war then being waged in El Salvador presented its more ugly face to the grandparents, mother and Applicant. They witnessed much brutality and wartime atrocities.
Mrs Rivera has a brother who migrated to Australia in 1984. In 1985 Mrs Rivera, her husband Mr Victor Rivera, her parents, the Applicant and his half-brother Manual Rivera entered Australia under a special humanitarian program for Central Americans. The Applicant is a refugee within the terms of the Refugee Convention. They were sponsored by Mrs Rivera's brother, Mr Wilfredo Quintanilla.
There was a close bond between the Applicant and his grandfather. Much to the distress of the Applicant, the grandfather died within one year of his arrival in Australia. The evidence before the Tribunal is consistent with this event having a destabilising influence on the Applicant who was at the time only 12 years of age. According to his mother, the Applicant as a child was not easy to control. The death of his grandfather gave vent to anger, which he frequently displayed, the Applicant saying that the death caused the anger in him because the grandfather was like a father to him "I never had the chance to forgive, he was life to me".
In 1988 at the age of 14 years the Applicant was charged and convicted of an offence relating to the sexual assault upon a 13 year old girl. He had climbed into her bedroom and sought to have intercourse with her. He contends that he was encouraged to so behave by associates.
The Applicant left school at the age of 16 years. In 1992, when still a minor, he was charged with and convicted of "assault, beat and ill treat" and of an offence relating to the use of a prohibited drug.
On 7 August 1993, when 19 years of age, the Applicant was involved in a motor vehicle accident in which he was allegedly struck by a car when walking on the road. He suffered inter alia a severe traumatic brain injury. A report of the brain injury unit at Lidcome Hospital of 4 January 1994 states (T2, pp6-7):
"…He was unconscious at the scene of the accident and was taken to Liverpool Hospital. On the way to hospital he had a cardiac arrest (ventricular fibrillation) and responded to cardioversion. CT scan of the brain showed a right parietal contusion. He also suffered a fracture of his left ulnar bone. He remained unconscious for about 19 days. His physical deficits included a mild right hemiparesis, right partial third nerve lesion and a partial left spinal accessory nerve lesion. He was transferred to Lidcombe Hospital on 7. 9. 93 for a period of rehabilitation.
When admitted to Lidcombe Hospital he was still in post head injury confusion state and remained so for a total of approximately 7 ½ weeks. This indicates that Salvador has sustained a severe traumatic brain injury.
Salvador has made a good recovery physically, but has severe cognitive and behavioural problems as a result of the brain injury. Neuropsychological assessments done in October this year showed reduced ability to concentrate with slowing of information processing. He showed impairment in new learning, verbal and visual memory. His problems solving skills were poor and he was impulsive and had limited insight into the full extent of his deficits…He was discharged home to the care of his parents on 5.11.93 to attend outpatient therapy program. A work assessment done by the occupational therapist indicated that he was not ready yet to return to work as a house painter, but Salvador was not happy with that decision. Salvador and his parents have been advised of problems that can arise as a result of such a severe brain injury. Salvador has a history of alcohol abuse in the past and has been advised not to consume alcoholic drinks as this can adversely affect him, even in smaller quantities. Firstly, his risk of having post head injury seizures would be greater when he is drunk, and secondly, he has an increased tendency to get disinhibited and engage in socially unacceptable behaviour. Unfortunately, due to his limited insight, on several occasions he has consumed alcohol (after he was discharged home), as reported by himself and his parents.
Salvador is being followed up by the Community Team of the Head Injury Unit at Lidcombe Hospital. This involved counselling to both Salvador and his family and taking part in a program to help him to return to work. He will be followed in the Outpatient clinic at Lidcombe Hospital in February next year."
In December 1993 the Applicant was charged with assault and resisting the police. On this occasion he had assaulted a young lady whom he had followed from a railway station at a time when he had been drinking alcohol, the assault being with the intent of having sexual intercourse with her. She was a stranger to him. He was convicted, fined and placed under the supervision of the New South Wales Probationary Service.
In the following year, as a consequence of an altercation with his mother, she obtained an apprehended violence order against him. He breached the order, was convicted and again placed under the supervision of the probation service.
It was in the same year 1994 that the Applicant committed the offence that constitutes the basis on which the deportation order was made. On the 23 September 1994 the Applicant raped a young lady and physically injured her. He was charged on two counts with committing the offences of aggravated sexual assault without consent and on 19 June 1995 sentenced to a term of imprisonment of not less than six years. The following year he was charged and convicted of assaulting a prison officer.
On 2 August 1995 the Applicant was informed by the Respondent that as a consequence of his conviction in June 1995 he may be liable for deportation.
The Applicant 's antisocial behaviour did not cease on his being incarcerated. Apart from the above-mentioned assault upon a prison officer, his detention record discloses numerous occasions when he has acted contrary to prison regulations and has been accordingly disciplined. He was found to have used drugs and alcohol while in prison.
On the expiry of his term of imprisonment the Applicant was transferred to the Villawood Detention Centre where he has remained pending the determination of the subject appeal.
The Applicant's mother, brother and other members of his family who gave evidence before the Tribunal, all say that "he has changed" and that he will not re-offend. They all say that they will take care of him in the event that he is allowed to remain in Australia. They also say that he would be without such support if he should be deported to El Salvador.
the relevant legislation and minister's direction
Section 200 of the Act provides that the Minister may order the deportation of a non-citizen. Section 201 so far as here relevant also provides:
"Where:
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) when the offence was committed the person was a non-citizen who:
(i) had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
…
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person."
Section 499 of the Act empowers the Minister to make directions. Direction No 9 is a general direction referable to criminal deportation and so far as here relevant provides:
"PREAMBLE:
This General Direction provides guidance to decision-makers in considering the making of deportation decisions under sections 200 and 201 of the Migration Act ("the Act").
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given discretion to deport from Australia those non-citizens who have abused that privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the Parliament and the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it.
…
The Parliament has entrusted the Minister for Immigration and Multicultural Affairs with the discretion to determine whether potential deportees will be deported from Australia. In exercising that discretion, the Minister is exercising the right of the Australian community to protect itself and to choose who will be permitted to remain in Australia as a permanent resident.
…
The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community.
PRIMARY CONSIDERATIONS
The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision a decision-maker should have regard to two primary considerations and a number of other considerations…
…
(6) In making a decision whether or not to deport a non-citizen, there are two primary considerations:
(a) the expectations of the Australian community; and
…
(7) In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are:
(a) the degree of hardship which may reasonably to be expected to be suffered by the potential deportee; and
(b) the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.
COMMUNITY EXPECTATIONS
(8) It is the Government's view that the expectations of the Australian community are a primary consideration in determining whether a potential deportee should be deported. Decision-makers should have due regard to the Government's view in this respect. There are two aspects to community expectations:
(a) the expectation that the community will be protected and not put at risk; and
(b) the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
Protection of the Australian Community
(9) It is the Government's view that the Australian community expects the Governments to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime…The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision-maker should have due regard to the Government's view in this respect.
(10) It is the Government's view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection:
(a) the seriousness and nature of the crime;
(b) the risk of recidivism; and
(c) the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
Decision-makers should have due regard to the Government's view in this respect.
The seriousness and nature of the offence
(11) It is the Government's view that the following are example of offences, which are considered by the Government to be very serious:
…
(c) sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence;
…
(k) crimes against children;

because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children;
(l) any other crimes involving violence or the threat of violence;

such crimes are of special concern to the welfare and safety of the Australian community.
…
Decision-makers should have due regard to the Government's view in this respect.
The risk of recidivism
(13) It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism…In particular the following factors will be relevant to the assessment:
…
(b) a person with several previous convictions in Australia should be considered as an increased risk in the light of the past behaviour…
(c) the extend of rehabilitation achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
The likelihood that deportation of the potential deportee would prevent (or inhibit the commission of) like offences by other persons
(14) It is the Government's view that this factor may be relevant to protecting the Australian community in various ways:
(a) the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and
…
Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community
(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 the Government's view in this respect.
…
OTHER CONSIDERATIONS
(21) 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 and the primary considerations. These matters include:
(a) the degree of hardship which may be suffered by the potential deportee; and
(b) 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).
…
The degree of hardship which may be suffered by the deportee
(22) It is the Government's view that factors to be considered here include:
…
(b) while it is less likely that potential deportees who have the greater proportion of the formative years in Australia will be deported, it is not the Government's intention that such people will never be deported;
(c) the degree and extent of the potential deportee's ties with the likely country of return;
(d) the strength of other family, social or business ties in Australia;
…
(f) 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…
The degree of hardship to any Australian citizens or permanent residents including potential deportee's family
…
(24) It is the Government's view that factors to be considered here include:
…
(b) the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them;
(c) 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
…
INTERNATIONAL OBLIGATIONS
(25) Decision-makers are to consider the international obligations contained in this section.
(26) The International Convention on Civil and Political Rights…
(27) The Convention Against Torture…
(28)…The Protocols Relating to the Status of Refugees (the Refugees Convention)…"

the criminal history of the applicant

The criminal history of the Applicant is as follows:
Charge Date Court Name – Charge Station – Offence Court date – Sentence
27/10/1988    Minda Childrens Court Fairfield 001. Indecent Assault 002.Assault with Intent           20/11/1989 1 & 2 on each charge without conv prob 12 mths GB attend school regularly supv district officer
29/03/1992    Burwood Childrens Court Liverpool 001. 1. Assault S61         25/05/1992 1. NBC conv W80AA wti for penalty
14/05/1992    Burwood Childrens Court Fairfield 001. 1. Assault       06/07/1992 1. FD $400
21/07/1992    Burwood Childrens Court Fairfield 001 1. Assault beat & illtreat (S80AA warrant) 002 2. Admin proh drug 22/07/1992 1. Fd $300 Court costs $45 2. FD $100 court costs $45
10/12/1993    Liverpool Local Court Liverpool 001 1. Assault 002 2. Resist police 20/01/1994 1 & 2 on each charge recog S558 self $500 GB 2 yrs not approach victim accept supv NSW Prob Service
20/12/1993    Liverpool Local Court Liverpool 001 1. Assault 20/01/1994 1. Recog S558 self $500 GB 2 yrs accept supv NSW prob service
30/04/1994    Liverpool Local Court Liverpool 001 1. Breach of ADVO         29/06/1994 1. Recog S558 self $500 GB 12 mths supv NSW Prob Service
24/09/1994    Liverpool Local Court Liverpool 001 1. Aggrav sexual assault 002 2. Sexual assault without consent       20/12/1994 1 & 2 on each charge cft Sydney Western DC
24/09/1994    Liverpool District Court Liverpool 003 Indicted for 1. Aggrav sex intercourse without consent 2. Aggrav sex intercourse without consent   1. min term 6 yrs from 230994 add term 3 yrs release subject to supv 2. fixed term 4 yrs from 230994
24/09/1994    Court of Criminal Appeal Liverpool 004 App. For leave to appeal against severety of sentence of 190695 And has ordered that leave to appeal be granted. Appeal dism
13/09/1995    Lithgow Local Court Lithgow 001 1. Assault prison officer      13/09/1995 Fixed term: 2 months commencing 13/09/1995 concluding 12/11/1995

the deportable offence

As has earlier been indicated the Applicant was charged with and convicted on two counts of aggravated sexual intercourse without consent. A report made consequent upon examination of the young lady victim of the assault on 17 October 1994 (Exhibit 1, page 53), after detailing numerous abrasions observed on her body and making mention of forensic details more pertinent to the sexual penetration, stated:
"…In my medical opinion the multiple abrasions on her back buttocks and legs are consistent with her history of being dragged over rough ground.
The marks on her neck are consistent with finger marks on the left side of her neck and thumb mark on the right side of her neck.
…"
In his reasons for sentence the sentencing judge inter alia stated (T6 pp45-51):
"…The facts are set out fairly eloquently in the victim's statement. What happened was that you approached the victim at a hotel, you "hung around" the table occupied by the victim and friends of hers, she tried to discourage your attendance. She left about 9.15 in order to walk to her home. You approached her and offered to walk her home, she rejected this suggestion, as she became closer to her home you were walking along side of her, she was walking fast and a little ahead of you when you suddenly came from behind and grabbed her throat and started squeezing her throat. You dragged her into an empty vacant allotment, you squeezed her neck, she was having trouble breathing and then you raped her. You tried to induce to carry out fellatio on you and you raped her again. Fortunately you were discovered in flagrante delicto by police, you were actually lifted off the body of the victim.
You see the problem with this is that it is every woman's nightmare, surely a lady is entitled to walk along the street without the fear of the footsteps behind, fear of being stalked, violently assaulted and raped and to make matters worse I see that on 20 December 1993 you behaved in a very similar fashion in relation to a lady I will simply refer to as …She was walking home from Liverpool railway station. She became aware that you were walking behind her, she became frightened, you followed her into the stairwell of her block of home units. You took hold of her and put your arms around her neck, she fortunately fought back in a somewhat spirited fashion and presumably thereafter you were arrested and that became the subject of the entry on your antecedent report which is dated 20 January 1994, on which occasion I see that you were given a bond. While I am dealing with the record I note in the context of the submission relating to the head injury you sustained in August 1993 that you had a conviction for violence, two convictions for violence in 1992.
When you were interviewed by the police you denied the offences. You have ultimately pleaded guilty, I do not think the plea comes much into the equation because it was an enormously strong crown case. The plea was delayed somewhat but as Mr Cahill submits he was entitled in view of the head injury to investigate carefully what your situation was as to criminal responsibility.
It is submitted that the penalty should be towards the lower end of the scale, that there was no severe violence by way of punching et cetera. There are some difficulties about it, the medical evidence makes it clear that there are very obvious finger marks on the neck of the victim and I am sure that she was in absolute terror.
There were multiple abrasions on her buttocks and legs caused by her being dragged over the rough ground of the vacant lot…
Most of Mr Cahill's competent submissions have been directed towards the relevance of the head injuries sustained in August 1993 but he has a considerable difficult in that respect and that is that the level of awareness that you had of the disinhibiting effects both of the injury of August 1993 and of the exacerbation of those effects by alcohol consumption. It even appears from the record of interview as to your state of awareness. Answer to question 115 "Sometimes like I drink a bit to much, bit hard to control myself I do not think" and then further over answer to question 116 which was in these terms "Salvador can you tell me if tonight whether you did have to much to drink", answer "I don't know, I don't know, I should accept that, I don't know if I should put that as an excuse because everytime I got in trouble the same, my first trouble with the police, everytime I got in trouble with the police seems like I got to be under the influence of alcohol. It seems like evertime I get in trouble I blame the alcohol, that's the problem but I cannot stop drinking".
Well I have read the material as to the head injury and it is plain it was very significant, you were unconscious for nineteen days, it seems to me that the relevant sequelae from that are, the frontal lobe impairment, that is the disinhibiting effect and its consequence rendering you more likely to act on impulse, so that your judgment is not as good as it was.
…you knew that you had poor impulse control, you knew that would worsen when you drank alcohol. You knew as of the assault on …20 December 1993 that this was the sort of thing that would very likely happen and yet you persisted with your alcohol… I think the community would be outraged in view of the systematic stalking and assault on young women if this court did not impose a heavy sentence. That is what I propose to do. I made a finding of special circumstance under s5(2) because it seems to me that you need a minimum of three years of careful psychiatric supervision and medication.
…I recommend to the Offenders Review Board that his parole be supervised by the New South Wales Probation Service and that he be required to undertake whatever psychiatric supervision and/or medication as is thought appropriate…"

record of infringements during period of penal servitude

Information provided by the New South Wales Department of Corrective Services details infringements committed and punishments sustained by the Applicant during his incarceration from February 1995 to 29 January 2000. Without making mention of each of the various infringements, such listing notes that the Applicant engaged in threatening behaviour, use of abusive language, non-compliance with routine, use of threatening language, damaging property, assaults, fighting, refusing urine test, possession of unauthorised property, possession of alcoholic liquor, possession of a drug implement and damage to his cell and its contents.
In the course of his evidence before the Tribunal the Applicant admitted to having spent time in correctional institutions at Lithgow, Windsor, Bathurst and Cessnock over the above-mentioned period. He experienced trouble in each of them. He committed internal offences and indeed at Lithgow he committed some 39 offences and at Windsor, Bathurst and Cessnock three offences at each location.
The Applicant when asked what benefits he had derived from his time in prison stated (T32, p97):
"Yes, what I've learnt from gaol is how to be angry. You don't get rehabilitated in goal".

He further said (T32, p101):

"Whilst I been in goal, I've learnt to be quiet and to tell the difference between right and wrong but sometimes I cannot learn because people will not leave me alone".

the medical condition of the applicant

As a consequence of the accident experienced by the Applicant on 7 August 1993, when as a pedestrian he was struck by a motor vehicle, he was hospitalised until 5 November 1993. On admission to hospital his injuries were identified as traumatic brain injury and fractured ulna. The discharge summary of 5 November 1993 states (Exhibit 1, Annexure C7):
"Salvador attended group and individual sessions in Physiotherapy, Occupational Therapy and Speech Therapy. He displayed symptoms of depression, manifested in an attempted stabbing with a blunt knife. However, his mood lifted when the decision to discharge him was made.
He was reviewed by the psychiatrist on 4 and 5 November 1993. There was no evidence of endogenous depression, although previous alcohol abuse had been discussed.
He was discharged home to the care of his parents on 5.11.93, to attend an outpatient therapy programme.
…"
In May 1995 Dr Bruce Westmore, a forensic psychiatrist, expressed his opinion that (Exhibit 1, Annexure C7):
"Mr Rivera suffers from a trauma induced organic brain condition of some severity. The nature of his brain lesions would result in impaired judgment, impulsivity and aggression. He would most likely demonstrate poor impulse control and a low frustration tolerance. The presence of an organic brain disease, whatever its origin, invariably renders the sufferer more susceptible to drugs and alcohol. His use of alcohol would have resulted in a greater degree of disinhibition impulsivity and further compound his capacity to make reasonable and rational judgements. The nature of his behavioural disturbances suggests his frontal lobes have been significantly affected by his brain injury, as a result of this the natural, and perhaps normal, behavioural instincts of aggression and sexual urges run to a large degree unchecked in this young man, this condition certainly aggravated by alcohol.
…
His long term future I must report, regrettably, remains uncertain. He has a permanent disability and indeed with advancing years he may demonstrate even more disinhibited behaviour. Chemical controls such as the anti alcohol substance, Antabuse and the anti libidinal medication, Androcur, may be useful supports to the very necessary long term psychiatric and psychological care which he needs to receive.
…
His long term future and prognosis can only be considered in a very guarded fashion.
…"
In his report of October 2001 Dr Westmore having re-examined the Applicant stated (Exhibit B):
"1. His risks of committing further offences is most uncertain in my view, this due to the permanent nature of his brain damage, the difficulties there will be in educating him about the need to totally abstain from alcohol use, his vulnerability to alcohol and other drugs because of his brain damage and his likely heightened sexual drive occurring as a result of his brain injury.
…
3. Regarding the extent of rehabilitation he has already received this is, unfortunately, somewhat limited. It was determined that the sex offender's programme was not suitable for him and he has not had any specific counselling about his offending behaviour. He has however attended anger management classes and a course to help him with self esteem. Obviously, it would have been desirable for this man to have had quite intense support over the last seven years of a psychiatric, social and educational type but this does not appear to have occurred due to a number of possible reasons."

recidivism – possibility of the applicant re-offending

The offences for which the Applicant was convicted and sentenced in 1995 were of a particularly callous and thoughtless nature. The Applicant sought to gratify his own lust regardless of the hurt, both physical and mental, brought upon his victim. It was said that his conduct was partly attributable to his having consumed a quantity of alcohol and this activating a pre-existing disposition to commit sexual offences.
The Applicant had committed offences of a sexual nature for which he had been convicted on two occasions and had shown an inclination to committing this type of offence prior to his accident and the consequential brain damage injury. He had displayed a propensity for consuming alcohol and an aggressive nature not only towards women who were strangers to him, but also to his mother. Since his incarceration he has continued with a display of anti-social, anti-authoritarian behaviour.
A case management supervisor stated in a notation of 22 January 2000:
"Watch this inmate very closely. I strongly believe he infatuates himself over any female he comes in contact with…"
A report of the Probation and Parole Officer at Goulburn of 14 June 2000 under the heading assessment and recommendation states (Exhibit 1, Annexure B15):
"Mr Rivera had already committed a violent sexual offence when he was fifteen years of age. He had also been convicted of Assault, Beat and Ill treat, Administered Prohibited Drug, as a juvenile. It is noted that these offences occurred prior to the accident in which he received brain damage. These offences indicate that Mr Rivera has a problem with controlling his anger.
He admits that he knows right from wrong. When ask why he drank he told Dr Westmore "Because I like it and when I'm straight, meaning sober, I think nothing will happen but after I drink I don't give a fuck about what I think before"…
Susan Hannell in her Psychological Report notes – "An accurate indication of Salvador's intellectual functioning was not possible given the language and cultural factors involved when testing children from non-English speaking backgrounds. However, Salvador's results on the non-verbal sub tests presented and developmental mental scoring of his human figure drawing suggest low average intellectual functioning. This is however, at best only an estimate of his potential."
In spite of three convictions for serious sexual offences Mr Rivera does not accept that he has any problems with sexuality and has refused to undertake a sex offender's program.
Judge O'Reilly recommended that Mr Rivera be assessed for possible placement in the Special Care Unit. It would appear that this has not yet been considered.
Release to parole cannot be recommended at this time. It is felt that Mr Rivera could benefit from a thorough Psychiatric Assessment. Once this has been completed he could then be considered for the Special Care or another suitable program."

A supplementary parole report of 1 August 2000 states (Exhibit 1, Annexure B16):
"Little has changed with Mr Rivera since the Parole Report forwarded on 14 June 2000. He states that he has not seen an Alcohol and Other Drugs Counsellor, a Psychologist or an Education Officer in the past few months. Access to Inmate Development Staff is difficult at Goulburn and Mr Rivera does not seem to have made much effort to seek out help.
He went to Long Bay for medical purposes and states that he was charged with "Threatening Behaviour" when he swore at a custodial officer. He continues to display signs of paranoia.
He is unable to work because of his knee injury. He has another appointment booked with a surgeon to consider surgical intervention. Mr Rivera complains that he suffers from double vision. He has been advised to have his eyes checked as soon as possible. I also recommend a comprehensive psychiatric assessment."
The Correctional Centre Report confirms that Mr Rivera does not appear to have made any great efforts to improve his behaviour, his education or to tackle his problems.
Parole cannot be recommended until Mr Rivera has addressed his offending behaviour, has undertaken some intensive counselling regarding his sexual deviation, and made greater efforts to control his temper."
In September 2000 the Assistant Superintendent at Goulburn Correctional Centre stated (Exhibit 1, Annexure D1):
"…
Inmate Rivera poses a real threat to staff in order to prevent deportation, he has difficulty associating with other inmates and it is intended to refuse parole because he is "unable to adapt to normal lawful community life; risk of reoffending;" and his need to address offending behaviour.
I recommend that inmate Rivera be placed on segregation for the good order and discipline of the Institution and safety of staff. Further to that he be treated with extreme caution due to his strong desire to prevent being deported."
Dr Westmore in the course of his oral evidence given before the Tribunal said that the Applicant experiences difficulty with anger control as a result of his injuries. With regard to anger and sex drive, medication may help and may reduce aggressive sexual conduct. However, Dr Westmore did not know how insightful he could be in relation to medication, but cautioned that drugs do have side effects, which may be adverse and may lead to a person terminating drug intake. Dr Westmore expressed serious concern as to the long-term future of the Applicant, stating that his risk of re-offending is higher than that of a non-brain damaged person and his future is uncertain, with a pessimistic prognosis. When it was put to Dr Westmore by the legal representative for the Respondent that since 1995 the Applicant had maintained his violent behaviour, did not believe that he needed sex therapy, and had used marijuana and heroine as well as alcohol, Dr Westmore expressed the view that the lack of belief was a poor prognostic indicator, displaying a lack of personal insight as to his requiring specialist attention. Generally his prognosis was poor. The head injury had the propensity of producing a heightened sexual activity and aggression than might otherwise be the case. Indeed, if it could be said that the Applicant displayed a disregard for the wishes of others prior to his injury as evidenced by the earlier sexual assault, then the prognosis for the future was even more pessimistic.
Ms Peta Mead, internal psychologist Goulburn Correctional Centre, in her report of 6 November 2001 said (Exhibit 2):
"…At that time [11 September 2000], Mr Rivera had made no formal application to either the Custody Based Intensive Treatment (CUBIT) programme or the Violence Prevention Program (VPP), both of which are specialised programmes. According to records held on the psychology file, on 22nd April 1999 Mr Rivera declined to give his consent to a CUBIT referral; he indicated that he had read the information pertaining to CUBIT but declined to proceed with the referral – indicating that he was not interested in participating in treatment. In regard to the VPP, no formal applications had been received as of 11th September 2000.
Mr Rivera again presented for contact whilst housed in the Goulburn Correctional Centre, on 11th October 20000. He asked about programmes in the MSPC but did not request to be referred to, or further assessed for, these programmes. Mr Rivera was then transferred out of this centre. Recent contact with Psychological Services at the MSPC (29th August 2001 and 5th September 2001) indicate that he initiated contact with psychological services to ask about the CUBIT and VPP programmes, at which time suitability criterion was discussed with him in reference to his being eligibe for either programme. Mr Rivera, as indicated by the notes, was unsuitable due to the fact he was unwilling to sign off protection for the VPP, and his current classification made him ineligible at that time for CUBIT."
The Applicant's mother, when asked as to her view on prospects for rehabilitation, said (T32, p108):
"I think it is good. Prior to sentencing he was working and he had bad friends which affected him."
In her oral evidence she said that he had shown more affection for she and her husband in the last year "he is a different person; he will take medicine if asked; all the family were worried; they will support him and me also". She further said that she has seen him every week but "now he has gone better, I tell him to do this and he tries to do it. I know now, he knows he did wrong and will take medication".
Mr Manual Rivera said that he "surely" believes his brother has changed. But he conceded in the course of his cross-examination that he only found out about the earlier offences committed by his brother when Counsel appearing for the Applicant told him and further, he did not know about the 1992 offences and had not been informed until recently as to nature of the offences for which his brother was convicted in 1995. He said, when told of their nature, he was shocked and confused, as he did not believe that his brother was capable of that kind of violence.
Mrs Lidia Quintanilla, the Applicant's grandmother, said that he had changed especially in the way that he expressed himself, this even be it that she did not know why her grandson was in jail or that he was in jail for committing a serious offence.
The Applicant himself said with regard to his "anger and sex problem" that he would do everything in his power to take drugs to stop his sex urge and craving for alcohol and that he would obtain employment consistent with his injuries. Further, that having "grown up in jail" he had learned to obey, he would attend a psychiatrist, he would take appropriate medication and would live with his mother, father and brother and have their support. He said that he accepted a need for constant medication and psychiatric assistance. He also said in relation to his alcohol intake and drug use that he would never use alcohol or drugs again "I want a future for myself, if this is the only option I am prepared to take medication to stop", this even be it that having claimed he had not consumed alcohol or used drugs for seven years he admitted in cross-examination that whilst in jail he had drunk "home brew" and further, that he had used marijuana in jail on 15 occasions and heroine on at least two occasions.
Mrs Christina Quintanilla also said that the Applicant had "changed lately" and she was "sure he would not do the same again". However, as with the brother and grandmother, she did not know the nature of the offences committed by the Applicant; all she knew was that he had done something against the law. So also Ms Ana Campos who, whilst saying that the Applicant had changed, did not know the nature of his criminal offences or of the nature of any trouble in which he had been involved.
It was submitted on behalf of the Respondent that there was a high probability of the Applicant re-offending. This submission was supported by reference to the evidence before the Tribunal to the effect that the Applicant had refused to undertake any sex offenders programs during his period of imprisonment. It had been noted that he became infatuated with any female he came in contact with, that a close watch had been required to be placed on him, that parole was refused on account of his not having addressed his criminal behaviour and that he had not attended education courses while being held at the Goulburn Correctional Centre.
It is apparent from the reasons for sentence expressed by the sentencing judge that it was accepted the Applicant was fully responsible for his own actions even be it he had experienced brain damage and had consumed some alcohol. The Applicant from the age of 14 years had engaged in anti-social conduct not only in the community at large but in his own home. The personality traits that he had exhibited prior to his accident evidenced a sexual drive, which could not be contained, and aggression. Consistent with the opinion expressed by Dr Westmore the Tribunal is of the opinion that the Applicant exhibits a very high risk of recidivism, it not being a question of if but when the Applicant will again offend. It is recognised that the Applicant grew up in an environment of extreme violence and this no doubt played a part in his psychology. Nevertheless, he has displayed in the past and recently a propensity for violence, which is consistent with a lack of acceptance by him for a need to control his anger and aggression. It was submitted on behalf of the Respondent that even if the Applicant should commence a course of medication, it would not be maintained. This is more likely to be so than otherwise.
The evidence before the Tribunal establishes a lack of ability or willingness on the part of the Applicant to rehabilitate himself. He has a poor prison record; there have been incidences of drug intake and alcohol use; there is evidence of aggressive behaviour, of non-compliance with rules and regulations and a lack of willingness to undertake rehabilitative courses.
In all the circumstances of this matter the Tribunal is satisfied that the risk of recidivism is totally unacceptable. The Tribunal in its present capacity is the custodian and protector of community expectations. The Tribunal accepts this responsibility. It is satisfied that the community would not expect the Tribunal to find other than as expressed above.
family composition in australia and support for the applicant
The attitude of those members of the Applicant's family who gave evidence is summed up in the joint statement of the uncle and aunt of the Applicant who said (Exhibit A):
"We, Christina and Wilfredo Quintanilla, Aunty and Uncle of Salvador Rivera, We Beg that you take in Consideration his health and that Salvador Rivera has all his family that Love him Unconditionally here in Australia. In El Salvador our Native country we have no one and most important of all Salvador Rivera has no family in his birth country El Salvador. That is why we Beg you to have Consideration in Salvador Rivera's Health and as well as our Petition."
As earlier mentioned, members of the Applicant's family said that they had observed a change having taken place in the Applicant. Unfortunately however, there is little evidence of their being aware of the Applicant's true character and of his propensity for the commission of criminal offences of an aggressive and a sexual nature. Indeed, in some instances there was a lack of awareness of the Applicant having a criminal history other than for which he was sentenced in 1995. Love and affection may well be present and intent to support may be expressed but it is to be noted that there would seem to have been a singular lack of that support for him in earlier years.
position if the applicant remains in australia
The Applicant has said that on his release and provided he is allowed to remain in Australia "I plan to live at home with my family and go for compensation in relation to my accident. I have friends who are architects and I want to work with them". He also said in the course of his oral evidence that if he is allowed to stay in Australia, he will live with his grandmother, that his father drinks and that "it is better that I live away from him". It is noted that the stepfather, in the course of his evidence, stated that he stopped drinking alcohol only seven months ago. Further, the Applicant said that he would be "going home to live with his family. His grandmother is 60 years of age, lives in housing commission accommodation and needs assistance. He will live with her for a period".
Mrs Rivera said that if her son is allowed to remain in Australia, she will help him as much as she can. She would endeavour to find money to pay for his medication. If the Applicant is returned to El Salvador she does not know "who is going to look after him, medical treatment is more difficult and expensive". Mr Manual Rivera, the Applicant's brother said he would support him "emotionally", "I have done a course in psychology at the Bible College", he said. Mr Victor Rivera, the Applicant's stepfather accepts responsibility in part for the Applicant's use of alcohol. He said that he was aware of the Applicant being warned following the accident not to have alcohol nevertheless "I offered it to him". If the Applicant comes home, Mr Victor Rivera said that it would be totally different "I am older and have learned from past mistakes, he will need a lot of support". Mr Rivera said, even though he was warned to give up alcohol seven years ago on account of a brain tumour, that it is only over the last seven months that he has resisted drinking alcohol. Further, if the Applicant is allowed to remain in Australia and comes to live in his home, he having learned from the past, will enable a different attitude to prevail "we need a second chance to correct mistakes of the past, we are changing and we can see Salvador is changing. I can correct my mistakes of the past". Mr Wilfredo Quintanilla, the Applicant's uncle, said that he would support the Applicant "as a family member, he would give him moral support". He continued by saying that he was aware of the Applicant's use of alcohol and he accepted that if the Applicant again used alcohol "that he might commit the same crime". He would try to encourage the Applicant to attend Alcoholics Anonymous. As with other family members, Mr Wilfredo Quintanilla did "not really know why he [the Applicant] was in prison" and he had not "asked his sister the nature of the crime".
hardship on the applicant in the event of deportation
The Applicant has residing in El Salvador, as he described the situation (T32 p94) "great aunties and other relatives, second cousins". His reaction to the possibility of deportation was:
"I am used to living in Australia. If I were deported it would be my worst nightmare".
Dr Westmore stated:
"Should he be required to return to El Salvador, I do believe he would potentially experience great hardship. I understand he has no family ties in that country, his brain damage will make it difficult for him to obtain employment and to readjust and reintegrate into another society and culture, certainly not without the potential for considerable conflict."
In his evidence before the Tribunal, the Applicant said that on being told that he could be deported, it hurt him thinking of his family and there being nobody "back home". By the use of the words "back home" the Applicant was referring to El Salvador. If he was returned to El Salvador he "did not know what he would do, there would be medical complications" and he "would have to be retrained".
The Applicant's mother said that she had two aunties and an uncle living in El Salvador, they being sisters and a brother of her mother. If her son were to be deported she would not go with him as she and her husband are both pensioners and they would not be able to support themselves in that country, whilst if the Applicant remained in Australia, she would do what she could to financially assist him.
Mr Manual Rivera has recently visited El Salvador with his grandmother, Mrs Lidia Quintanilla, and stayed with relatives. He said that on visiting the country in 1998/1999 he "noticed a difference in the culture [to that in Australia], the existence of poverty and saw children selling items in the street". He also said he noticed a difference in the way people spoke and the existence of a large number of unemployed. He has not visited any other third world country. Further, he said whilst in El Salvador he visited relatives and stayed in different places with them. However, he was of the view that they had their own families and would not be able to provide long-term accommodation for the Applicant. However, he is himself prepared to make financial sacrifices in the interest of his brother and if the Applicant were deported to El Salvador he would do what he could "to help him out".
Mrs Lidia Quintanilla said if the Applicant should remain in Australia she would "advise him to take his medicine and look for a job". She made mention of travelling to El Salvador in 1998/1999 visiting that country in order to see her father and her sisters. She has returned to El Salvador on three occasions, staying for a period of time on each occasion. On her most recent visit she stayed for a period of ten months. She stated that the family in El Salvador are not closely related to the Applicant and that she would not be able to ask them to help him. Mr Wilfredo Quintanilla, as already mentioned, indicated that if the Applicant should be returned that he would contact his relatives and send money to the Applicant if he could. The relatives themselves do not have enough money to provide such assistance. Mrs Christina Quintanilla, the aunt of the Applicant, said that she would give him help if he was deported to El Salvador "but not as much as if he remained in Australia".
It is apparent that the Applicant does not have a close association with his relatives in El Salvador, this being partly attributable to his not having lived in that country for some years. It is unlikely that he would be able to obtain financial support from them but in view of the fact that his brother was able to reside with the relatives whilst he was in that country it is more likely than not that the family would extend accommodation, if only temporary, to him. Members of his family living in Australia have offered to provide financial assistance, if they are able. The Applicant would experience hardship in this regard if he be deported but he would not be without a measure of support.
hardship on others
Mr Manuel Rivera speaks of the effect that the Applicant's conduct has had on his mother. He said (Exhibit A):
"I belief that in all this situation my mother Blanca Rivera has suffered the most, her health is at risk because she thinks too much on this situation, she always cries and this has changed our family, our lives at home, seeing my mother suffer, we all await the day that we can see my brother at home with us. This is why I ask for consideration that my brother Salvador Rivera please stay, as if he gets deported it would break my mothers heart and it would destroy me to see my mother this way."
The Applicant's grandmother in her statement says (Exhibit A):
"Give Salvador an opportunity for his own life, which would also include my daughter's life, as she is the one who suffers most, although this problem has affected the whole family."
Ms Ana Campos said (Exhibit A):
"The major problem is that when Blanca Rivera thinks about her son going to El Salvador she suffers even more because he will be on his own. As a result of his brain damage he may also get into trouble again."
Dr Westmore in his report noted (Exhibit B):
"There would likely be considerable hardship experienced by his mother in particular, but also possibly by his stepfather and brother, should he be deported from Australia. Those people visit him in prison and his mother in particular appears to continued to be concerned about him and care for him."

Clearly the Applicant's mother would be adversely affected if her son should be deported to El Salvador. She has clearly suffered as a consequence of his criminal conduct and his incarceration. She is apprehensive as to his future not only if he be deported but even be it he remains in Australia. The Tribunal is mindful of the hardship and distress that in all likelihood will be experienced by Mrs Blanca Rivera in the event of a deportation.
the present situation in el salvador – convention obligations
An assessment on whether Australia owes protection obligations under the refugee convention to the Applicant (T41 pp123, 124, 125) tendered before the Tribunal states inter alia:
"…Although Mr Rivera claims that the reason which led his family to migrate to Australia was that his family was targeted by the authorities because of his uncle's alleged anti-government activities, he has provided no information or evidence to suggest that he would still suffer such persecution…Mr Rivera stated that "I'm used to living in Australia, if I were deported it would be my worst nightmare". However, there are no claims or evidence to suggest that the Applicant's life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion, if he were to be returned to El Salvador…
It is assessed that there is not a real chance that he will suffer treatment amounting to persecution as a result of his family's decision to migrate… Based on the above, it is assessed that there is not a real chance that Mr Rivera will face persecution on return as a result of his criminal activities in Australia.
The above circumstances would warrant the cessation of his refugee status under article 1C. As such there are no claims to be assessed against article 1A(2) of the Refugees Convention…
There is no evidence to suggest that Mr Rivera would be subject to violation of his civil and political rights under ICCPR.
It is therefore assessed that Australia would not be in breach of its international obligations under ICCPR if Mr Rivera were returned to El Salvador…
Based on the country information provided above, Mr Rivera would not be likely to face torture by the authorities if he were returned to El Salvador.
It is therefore assessed that Australia would not be in breach of its international obligations under CAT if Mr Rivera were returned to El Salvador.
CONCLUSION
As stated above, our assessment is that Mr Rivera is not a refugee under the Refugee Convention and is therefore not owed protection obligations by Australia. Australia would not breach its international obligations under ICCPR or CAT if he were returned to El Salvador."
The report of Amnesty International referable to El Salvador for the year 2001 (Exhibit 3) does not contain relevant material adverse to the safety of the Applicant if he should be returned to El Salvador.
The Respondent submitted that the critical issue in this regard is whether the life or freedom of the Applicant would be threatened on account of his race, religion, nationality, and membership of a particular social group or political opinion pursuant to article 33(1) of the Refugees Convention. It was contented that the Applicant would not be exposed to a threat if returned to his country of origin. There not being any other material on this issue tendered before the Tribunal it sees no reason to do other than to accept the above conclusions, which it does.
submissions and decision
It was maintained by Mr Duncombe, on behalf of the Applicant, that the Applicant arriving in Australia at the age of 11 years had little knowledge of El Salvador. He had experienced the motor vehicle accident and as a consequence suffered brain damage, the consequences of which are still manifest. It was further suggested that the Applicant had not received appropriate psychiatric supervision or medication whilst incarcerated and that his medical condition had in effect been ignored by the prison system. Whilst the former is clearly established by the evidence, the lack of supervision and attention was largely attributable to the conduct of the Applicant himself and his not making appropriate arrangements for, or extending a willingness to engage in, medical assistance programs.
It was further submitted that if the Applicant be deported to El Salvador that he would be there on his own, with minimal relative support, without assets and assistance and supervision, and that in all likelihood he would "fall into trouble" and "be back where he was". Whilst his family would provide such assistance and support as they were able, the same may not be sufficient. His propensity to consume alcohol and use drugs displayed in the past and on the occasions whilst in detention may well re-occur to his detriment. The long-term prospect of coping with the Applicant's mental and associated problems depends very much on his being able to continue his ties with his family. If he be sent back to El Salvador, support of a like nature would not be available and, it was submitted, would destroy all efforts to try and stabilise his lifestyle and prevent him from re-offending. The entire family, it was submitted, would suffer severe hardship if he be deported. The Applicant has a strong and continuing support in Australia from his family, particularly his mother and brother with who's aid the Applicant "may be still be able to make a limited contribution to the community as well as maintain a law abiding existence". On the other hand in El Salvador "he has few contacts and …his mental illness and associated disabilities would place him in an extremely vulnerable position".
The Tribunal is mindful of these matters that have been submitted on behalf of the Applicant and accepts that the Applicant would be so disadvantaged and there would be a hardship experienced by members of his family.
On the other hand it was submitted by Mr Leerdam on behalf of the Respondent that it is a primary objective of Direction 9 that the Australian community is to be protected from crime. It is an established fact that the Applicant consistently breached Australia's laws over a period of approximately 13 years continually committing acts of aggression upon others. This factor should weigh very heavily in favour of deportation. Sexual assaults, whether or not accompanied by violence, especially were there has been more than one sexual offence are clearly included in the Minister's Direction. The severity of the crime is indeed reflected in the sentence imposed, the same clearly being within the category of crimes regarded as serious.
As already indicated in these reasons the Tribunal is satisfied as to there being an unacceptable risk of recidivism in the Applicant. The convictions imposed on him have been earlier detailed, most of which relate to physical and to sexual assault. Little or no rehabilitation has been undertaken by the Applicant and there is a clear lack of motivation to make any significant contribution to the Australian community. It is apparent and the Tribunal so finds that the Applicant has displayed a singular lack of interest in his receiving treatment and/or rehabilitation relating to his sexual propensities while serving his custodial sentence.
The community may well be protected by a deportation in that it may deter other non-citizens from committing similar offences. A deportation would make it clear that commission of like offences by non-citizens could well result in deportation. There is a clear community expectation that where perpetrators of crimes abhorrent to the community are non-citizens they may well not be allowed to remain in the community. As was submitted on behalf of the Respondent the repugnant nature of the Applicant's offences coupled with the risk of recidivism leads to a situation that warrants deportation.
The Tribunal has already made comment on the degree of hardship which may be suffered by the Applicant and by members of his family. It is clear that the Applicant's mother would experience emotional hardship if her son be deported. The Tribunal has considered all of these factors and given them such weight as is indicated in the Direction and is appropriate in all the circumstances.
The Tribunal's attention was drawn to the criminal deportation policy contained in the Direction, the risk of recidivism and the absence of efforts by the Applicant to do those things necessary to enable a rehabilitation to be effective. The nature of the offences committed by the Applicant, the observations of the sentencing judge, the term of imprisonment imposed and the lack of acceptance of responsibility by the Applicant for his criminality, all weigh heavily in favour of deportation.
The inherent personality traits detected by Dr Westmore raise concern as to there being a very high risk, indeed an unacceptable risk, of recidivism. The Tribunal accepts the submission made on behalf of the Respondent that it is not a question of if but of when the Applicant will offend again.
In all the circumstances of this application, being mindful of the above-mentioned matters relevant to hardship, of the primary considerations including the welfare of the Australian community and the expectations of that community, and of the other considerations, and there being little or no evidence as to the Applicant rehabilitating or seeking to rehabilitate himself, the Tribunal cannot do otherwise than affirm the decision under review.
For these reasons the decision under review is affirmed.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. R N J Purvis Q.C., Deputy President
Signed: O. Caragianni            .....................................................................................
  Associate
Dates of Hearing  7 and 8 February 2002
Date of Decision  18 April 2002
Counsel for the Applicant        Mr K Duncombe
Solicitor for the Respondent    Mr L Leerdam