Rokobatini and Minister for Immigration and Multicultural Affairs - [2000] AATA 445

DECISION AND REASONS FOR DECISION [2000] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1443

GENERAL ADMINISTRATIVE DIVISION       )
           Re      EPENISA TIKO ROKOBATINI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date5 June 2000
PlaceSydney

Decision The decision under review is set aside and the matter is remitted back to the Minister with the Direction that Mr Rokobatini not be deported.

(Sgd Dr Duncan Chappell) ..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – criminal deportation – citizen of Fiji – came to Australia aged nine years and one month – family granted permanent resident status on compassionate grounds – convicted as a minor of illegally using a motor vehicle, larceny, breaking and entering, stealing and robbery – first offence as an adult - robbery in company – sentenced – rendered liable for deportation – granted parole – placed in immigration detention – consideration of seriousness of the offences – risk of recidivism – consideration of performance in prison – breaches of prison discipline – consideration of parole reports – recommended as a special category parolee – consideration of psychological and psychiatric assessments - statistical risk of further offence is high - no evidence of any severe personality pathology or disorder – potential to mature into a responsible citizen – consideration of deterrent factor – consideration of hardship – spent formative years in Australia – some support in Fiji – plan to involve in church outreach - employment opportunity if not deported – consideration of other persons – close bonds among members of the family – weighing of factors – not to be deported.
Migration Act 1958 s200
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 492
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Danionel Bustescu v Minister for Immigration and Multicultural Affairs FCA 1713
Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197

REASONS FOR DECISION

Dr D. Chappell, Deputy President

BACKGROUND
Application

Mr Epenisa (Ben) Tiko Rokobatini, the applicant, seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s200 of the Migration Act 1958 (the Act), to deport him from Australia. The Tribunal's jurisdiction to review that decision is granted by s500(1)(a) of the Act.
Mr Ron Kessels, a solicitor, represented Mr Rokobatini at the hearing. Mr Rokobatini also appeared in person and gave personal testimony to the Tribunal. The following witnesses also testified on his behalf:
Reverend R.H. Parr
Mr J.C, Nametala
Mr A. Waininall
Pastor T. Vuli
Mrs S. Rokobatini
Ms A. Duffy
Pastor J.A. Rokobatini
Mr Gordon Johnston, of counsel, instructed by Mr Jason Fong, a departmental advocate, represented the respondent at the hearing. The following witnesses testified on behalf of the respondent:
Mr A.M. Pryor
Mr A. Jain
Dr G.R.W. Windham Davies
Mr G. Wade
The Tribunal had before it documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975 (T documents). The following exhibits were also received into evidence on behalf of the applicant and respondent:
Exhibit No.     Description    Date
A1      Applicant's School Certificate       8 December 1994
A2      Statutory Declaration by Alosio Waininau          13 December 1999
A3      Statutory Declaration by Sotiana Tiko Rokobatini        13 December 1999
A4      Psychological report by Anita Duffy        13 December 1999
A5      Central Sydney Area Health Service Drug & Alcohol Services pamphlet
A6      Alcohol and Other drug Services of NSW and ACT: An Annotated Directory – CEIDA 1998
A7      Gambling – Is It Out Of Control? Pamphlet from NSW Department of Health
A8      Statement by Pastor Vuli   14 March 2000
A9      Statement by Josevata Rokobatini          Undated
R1      NSW Department of Corrective Services - Offender Visits     6/1/2000
R2      NSW Department of Corrective Services - Conviction, Sentences and Appeals     6/1/2000
R3      Report on Issues Relating to Living in Fiji, Australian High Commission, Suva, Fiji 11/1/2000
R4      Information sheet from Department of Social Welfare, Fiji
R5      Prison reports from MRRC under covering fax   12/1/2000
R6      Psychiatric report by Dr G. Davies           6/3/2000

Referral by Federal Court

This matter was remitted by the Full Federal Court to the Tribunal for reconsideration in September 1999: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. The reasons for this remittal are set out in the Federal Court's decision and do not require reconsideration here. The transcript of the earlier hearing, conducted before McMahon DP on 14 January 1999, was included among the documentary evidence before the Tribunal (T54). The transcript shows that at that hearing Mr Rokobatini gave personal testimony as did his father, Mr Josevata Rokobatini, and Pastor Tevita Vuli. No other witnesses were called on behalf of either of the parties.
Chronology of Events
The chronology of events which have led to the present proceedings was not a matter of dispute between the parties. Mr Rokobatini was born in Levuka, Fiji, on 1 March 1979. Mr Rokobatini grew up with his family in Levuka until 1988 when his mother, father and siblings came to Australia. The family landed in this country on 27 April 1988 as visitors permitted to stay for one month. At this time Mr Rokobatini was aged nine years and one month. Mr Rokobatini has not travelled outside Australia since his date of arrival.
On 27 May 1988 Mr Rokobatini's father lodged an application, on behalf of himself and his family, for residence status on humanitarian grounds (T: 47-59). This application was refused on 11 October 1988 (T: 60). Mr Rokobatini's father then lodged a number of appeals in relation to this decision, which was ultimately affirmed on 10 August 1992.
On 2 September 1993 the Rokobatini family again applied for permanent residence based on compassionate grounds. This application was accepted and the family was granted permanent residence on 19 December 1995 (T: 88 and in general respondent's Statement of Facts and Contentions: paragraphs 1-4).
Mr Rokobatini's first involvement with the Australian criminal justice system took place in March 1995 when he was convicted in the Lidcombe Children's Court of illegally using a motor vehicle (T: 235). Further convictions followed in the Children's Court for a range of offences including larceny, breaking and entering, stealing and robbery. These offences resulted in a range of sentences including probation, fines, control orders as well as a period of detention (see in general T: 235-236).
On 17 March 1997 Mr Rokobatini committed the offences of robbery in company which ultimately rendered him liable for deportation (T: 215). At the time of the commission of these offences Mr Rokobatini had been in Australia as a lawful permanent resident for a period of one year and three months. On 31 October 1997 Mr Rokobatini was indicted for and pleaded guilty to four counts of robbery in company. On 16 December 1997, at the New South Wales District Court at Parramatta, Mr Rokobatini was sentenced by Johnston J, on the first count of robbery in company, to a minimum term of 18 months with an additional term of two years and six months imprisonment. Mr Rokobatini was sentenced to fixed terms of twelve months on each of the three remaining counts of robbery in company to be served concurrently with the first count (T: 215-234).
A submission recommending that Mr Rokobatini be deported was forwarded to the Minister's delegate on 5 August 1998 (T: 201-213). In that submission, which took account of the principal criteria on which deportation decisions were to be based under what was then the Government's criminal deportation policy, it was noted that:
Mr Rokobatini has a criminal history that commenced as a minor having committed offences against the community such as stealing, break enter and steal, steal from person and robbery.
His most recent offence of robbery in company is a very serious offence and one for which he is now serving his first period of incarceration.
A prisoner assessment report dated 12 February 1998 from Parklea Correctional Centre indicates that Mr Rokobatini has had fourteen offence's [sic] in custody recorded against him, five of which were drug related. He was placed on short term management on three separate occasions due to intimidation of other inmates and was taken off contact visit status due to his drug related offences.
This prisoner assessment report also states that Mr Rokobatini has a general non acceptance of unit rules and overall poor acceptance to authority. He had his classification increased to medium security and it was recommended that he be transferred to Bathurst Correctional Centre.
A parole report dated 19 June 1998 from Goulburn Correctional Centre indicates that Mr Rokobatini had a further offence of 'Not comply Routine' on 20 May 1998. He now has a total of fifteen internal offences. During a home visit it was revealed that Mr Rokobatini has a serious gambling problem. Efforts are being made to have his problem assessed by an experienced gambling counsellor.
The parole report dated 19 June 1998 contains a recommendation not to release Mr Rokobatini on parole as he needs to put more effort into tackling his drug, alcohol and gambling problems. The report also suggested consideration be postponed for a period of six months.
Mr Rokobatini stated in his interview with the departmental officer that he regards his criminal history as bad and used the money from his crimes to purchase heroin. He indicated that he has done an alcohol and drug course and considers that he has good prospects for rehabilitation.
It is assessed that if Mr Rokobatini changes his attitude, remains drug free and does not associate with persons of the same calibre, he may then lead a law abiding life. However, given his recent negative prison reports it is assessed that his risk of recidivism is moderate to high.
(T: 210-211)
The assessment went on to record that Mr Rokobatini had made very minimal contributions to the Australian community and that his prospects of finding meaningful employment, should he be released back into that community, were not very favourable.
In regard to the strength of Mr Rokobatini's family and related social ties in Australia, the assessment stated that Mr Rokobatini's parents and four siblings resided in this country. It was recorded that Mr Rokobatini had himself lived in Australia since he was nine years old. The assessment acknowledged that Mr Rokobatini had strong family ties in this country and that both he and his family would suffer emotional hardship if he were to be deported. Nonetheless, weighing up the factors in favour of and against deportation the report concluded that those in favour outweighed those against.
The Minister's delegate, Mr Mark Anthony Sullivan, accepted the conclusion of the officials who had prepared this report. In ordering Mr Rokobatini's deportation Mr Sullivan said:
Mr Rokobatini has involved himself in very serious crime. Other factors are generally negative. The hardship he will face in returning to Fiji is regretted.
(T: 213)
Mr Rokobatini was informed of Mr Sullivan's decision to order his deportation on 3 September 1998 and on that date he lodged an application for review of the decision with the Tribunal (T4).
Following two earlier unsuccessful applications to be released on parole, Mr Rokobatini was granted parole status on 16 November 1998 but before his release the respondent's officials placed him in immigration detention (T: 194; 199).
As noted earlier the Tribunal considered Mr Rokobatini's case in January 1999 and affirmed the deportation order. This decision was upheld on appeal to the Federal Court: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 492. However, the Full Federal Court ultimately upheld Mr Rokobatini's appeal and remitted the matter back to the Tribunal for reconsideration.
ACT AND POLICY DIRECTION
Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies. A non-Australian citizen who has been in Australia for a period of less than ten years in aggregate, and has been convicted for an offence for which he or she has been sentenced to imprisonment for not less than one year, is liable to be deported (s201). It was not a matter of dispute that Mr Rokobatini's conviction on four counts of robbery in company made him liable to deportation within the provisions of the Act.
When Mr Rokobatini was convicted of the deportable offences, guidance as to the exercise of the discretion under s200 of the Act was to be found in Australia's Deportation Policy issued by the then Minister on 24 December 1992 (the Policy). The well established approach taken by the Tribunal to that Policy was that, in the absence of any good reason to the contrary, it should be taken into account in deportation proceedings. This was the approach which was adopted by the Tribunal in the hearing of Mr Rokobatini's case by McMahon DP in January 1999.
On 21 December 1998 the current Minister issued a new General Direction under s499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation Under Section 200 of the Migration Act 1958: General Direction – Criminal Deportation – No.9" (the Policy Direction). This Policy Direction was signed by the Minister on the date of its issue and superseded the previous Policy of 24 December 1992. Given this situation, it was now not a matter of contention between the parties that it was this new Policy Direction which required consideration by the Tribunal in addressing the issues involved in Mr Rokobatini's case.
As the Tribunal has already indicated in a number of decisions published since the issue of the new Policy Direction it must, as a matter of law, give this document significant weight. A Ministerial Direction under s499 of the Act stands on a very different footing from general statements of policy as to the exercise of administrative discretion, such as the one formerly providing guidance on deportation matters. The nature of this distinction is made apparent in the following passage taken from the Full Federal Court decision in Rokobatini:
The locus classicus on the part that government policy may play in merits review remains the joint judgment of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 418-422. Their strictures emphasise the importance of ascertaining, as a threshold question, whether the decision maker is under a statutory duty to regard itself as bound by government policy. In the present case s499(1) of the Act was such a specific statutory provision.
(per Whitlam and Gyles JJ at paragraph 12)
The Full Federal Court in Rokobatini also gave consideration to the way in which the Tribunal should give effect to the new Policy Direction. Whitlam and Gyles JJ in their joint judgment noted that this:
… brings into sharp focus the content of the Policy compared with the Direction. In considering this question, it should be borne in mind that the direction is not simply a list of relevant matters, it describes a process of decision making. The Policy has the same effect. Plainly, the text of each is quite different as, in our opinion, is their effect. The Minister, for example, submits that the Direction is 'tougher' than the Policy. Even if that is so (and it is a matter of debate) that illustrates the fact that it is impossible to equate one process with the other, or to assume that the outcome of following one will be the same as the outcome of following the other.
(paragraph 18)
Like its predecessor, the new Policy Direction makes it clear that the primary purpose of deporting a person from this country is to ensure the safety and welfare of the Australian community, and to exercise a choice on behalf of that community as a whole as to who should be allowed to remain within it (Policy Direction: paragraph 4). The new Policy Direction goes on to provide guidance as to the important factors which should be considered by a decision maker when determining whether or not a person should be deported. Two primary considerations to which a decision maker should have due regard are:
(a)the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.
(Policy Direction: paragraph 6)
Only the first of the primary considerations mentioned in the new Policy Direction have relevance to Mr Rokobatini's case since it was not contended that he was involved in any parental relationship. Thus attention needs to be given only to the guidance contained in the new Policy Direction concerning the way in which decision makers should have regard to the expectations of the Australian community as a primary consideration. The Policy Direction states in part, that:
… 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.
(Policy Direction: paragraph 8)
The Policy Direction also states that three factors are relevant to an assessment of the level of risk to the community and the need for its protection:
(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.
(Policy Direction: paragraph 10)
Given the importance and relevance of the three factors which have just been listed, attention is now turned to the evidence before the Tribunal in relation to each. Following this review the evidence is examined concerning certain other factors which the Policy Direction indicates require consideration by the Tribunal.
EVIDENCE
Seriousness and Nature of the Crime
The circumstances surrounding the commission of the deportable offences by Mr Rokobatini and a number of co-offenders was described in the following way by Johnston J at the time of his sentencing of Mr Rokobatini on 16 December 1997:
… about 11am on Monday, 17 March 1997, the prisoner [Bolamatu] [sic] met with co-offenders [including Rokobatini] [sic] and a number of others as yet unidentified persons in the Redfern area. They then commenced to drive round the Sydney area, eventually arriving in Castle Hill with the intention of committing a robbery offence on a business premises. The prisoner and other co-offenders then targeted the ANZ Bank situate at 287 Old Northern Road, Castle Hill, as the subject of the robbery.
          A number of the group entered local shops and obtained plastic grocery style shopping bags in preparation for the robbery.
          At 2.07pm that day the prisoner and his co-offenders, numbering seven to eight in all, entered the ANZ Bank and commenced to verbally threaten and physically assault staff and customers inside the bank. All staff and customers were ordered to the floor by the offenders, who then commenced to scale the front counter of the bank which was unprotected by glass or screens. Two tellers, both females, were physically assaulted by being pushed to the ground by the offenders, who scaled the counter. These offenders then removed a large quantity of cash from the tellers' drawers whilst other offenders, including the prisoner, remained on the customer side of the counter and menaced customers in that area. Three customers were also robbed of their personal property at this time. The facts in relation to those three customers are set out in the statement of facts tendered in the Crown brief.
          At the time of entry to the bank a maintenance technician was standing on a ladder whilst repairing the automatic entry doors to the bank. One of the offenders unidentified at this time knocked him from the ladder and kicked him a number of times to the head and body. He sustained lacerations to his body and bruising to his chest.
          Following the robbery the prisoner and the co-offenders then fled the bank via the front door and ran to two waiting vehicles. Upon driving from the scene one of the vehicles was sighted by the police and a pursuit ensued. The vehicle was driven in a dangerous manner at a high speed to Campbell Street, Northmead, where it stopped outside the Northmead High School. The four occupants then ran from the vehicle and were chased by the police.
(see T: 217-219; 225)

In the course of his personal testimony to the Tribunal Mr Rokobatini indicated that he had been one of the occupants of the vehicle which had been involved in the high speed chase but he avoided apprehension at the time that the vehicle came to a stop and its four occupants ran away. Mr Rokobatini also gave the following personal description of his role in the robbery during his examination in chief by Mr Kessels:
… Everyone has walked in, just me I was the only one that stayed out, everyone has walked in and I could from the outside what was happening. Everyone was, everything was like all over the counter and all that. So I decided to walk in and when I walked in I saw what was going on, I walked straight out. That's when they came out too. We all ran into the car.
Now you don't deny that you were part of the robbery?---Yes I was part of the robbery.
You knew what was going to happen?---I knew what was going to happen, yes.
Were there any weapons involved that you know of?---No, there was no weapon.
How was it that you were going to get the money from the tellers if there were no weapons? Was there a plan about how the money would be obtained?---They just went over with no weapons or anything and just took control.
Okay. They scared them into it, is that right?---Yes they scared them, yes.
Okay. And it was the fact that there were so many of you, is that what you were relying on to try and get the money, is that right?---Yes.
Now, did you see anyone hurt during this?---All I saw was the bloke with the ladder, he was right on the window.
What was it, a ladder?---Yes, he was on the ladder and I said to him, "Get down." That was it.
Did you see anyone hurt him?---When I walked in, yes. There was punches, there was kicks.
Can I ask you were you part of that?---Yes I was part of it.
Of actually attacking that man?---I didn't attack, no I didn't touch anyone.
Now, there were other people in the store who were robbed---?---Yes.
Of money?---Yes.
I'm not sure what it was but money or jewellery or whatever?---Yes.
You were charged in relation to those with being in company with the others when that was done?---Yes.
Did you actually take the things from those people yourself?---I never touched nothing.
When you went into the bank - - -?---Yes.
Again when I say you I mean you and the group, were you disguised at all?---I was just wearing a hat.
A hat?---Yes.
What about the others, did they have masked on or anything like that?---Everyone just had a hat on.
Do you know how much was taken from the bank?---About 80,000 to 90,000.
And did you get a portion of that?---Yes.
Because you were part of it?---Yes.
All right. And how much did you get?---I got a few grand.
All right. And what happened to that money?---It all went.
It went?---Yes.
Where did it go?---It went on drugs.
Right, okay. So you spent it?---Yes.
(transcript 12 January 2000: 38-40)
When sentencing Mr Rokobatini at the District Court hearing on 16 December 1997 Johnston J remarked upon his earlier conflicts with the law, commencing in 1993 with his appearances at the Children's Court. Judge Johnston noted that one offence of significance to the present proceedings was Mr Rokobatini's appearance in 1996 before the Bidura Children's Court on a charge of robbery where he had been given a control order. Judge Johnston said that this offence was similar to the one which had been committed at the ANZ Bank.
Judge Johnston also referred to a report prepared about Mr Rokobatini by a clinical forensic psychologist which expressed a view that Mr Rokobatini would benefit from a lengthy period of supervision once he was released from prison. Such supervision would enable Mr Rokobatini to have a further degree of structure in his life and might lead to a counselling relationship with his parole officer which could be of importance if Mr Rokobatini was to develop a more productive and responsible lifestyle.
Judge Johnston also referred to Mr Rokobatini's migration from Fiji with his family and said that he appeared to have benefited from a stable and secure family environment:
… The prisoner's parents claim that the prisoner was of no concern to them until he entered his Year 11 of schooling when aged 16, at which time he began associating with an unsavoury element and that his behaviour became increasingly uncontrollable. Some of the persons with whom he was associating were his cousins who, according to the family, were often in trouble with the authorities.
He also has some experienced [sic] with marihuana [sic] when he was young, and his main involvement with illicit substances was to smoke heroin for about eighteen months prior to his incarceration in Mt Penang. He stated that he has been heroin abstinent for six months.
In respect of his friends it would appear that he had been in trouble with other young expatriate Fijian youths, including his cousins, and they have been involved in various criminal activities before his juvenile institutionalisation.
(T: 231)
Judge Johnston then considered the gravity of the offences. He said that they were serious and there was "some degree of planning in them". They were offences which caused terror to the victims:
… The ANZ Bank was somewhat novel in its approach and, rather than the heavy handed production of weapons, it was a group of men who, because of their build and size, in entering the bank would have a frightening effect upon any person entering the bank.
          It was well recognised that victims of these robberies suffer psychological trauma for years to come. I have read the Victim Impact of one such victim. There is no need for me to request further reports because it has been recognised, the trauma on these occasions to bank tellers and customers of banks.
          They were serious offences and are offences deserving of the community's condemnation. The Crown quite properly submits that they are prevalent offences and one would be failing in one's duty if one did not consider the aspect of general deterrence.
          I have structured sentences to take into account the gravity of the offences, together with those many subjective features identified in the evidence.
          I believe, having considered all that material, that I am justified in each case of finding special circumstances and I propose to factor that into the sentences.
(T: 232)
The final sentence imposed by Johnston J upon Mr Rokobatini has already been set out earlier in this decision.
Risk of Recidivism
Policy Direction
Paragraph 13 of the Policy Direction provides guidance to decision makers about the factors which should be considered when assessing the risk of recidivism. The Policy Direction makes it clear that a person's previous general conduct and total criminal history are highly relevant to assessing this risk. In particular, the following factors will also be relevant to that assessment:
(a)the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
(b) a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably be expected to make.
(Policy Direction: paragraph 13)
It was not contended by the respondent that any prior warning had been given to Mr Rokobatini about the risk of deportation (Policy Direction: paragraph 13(a)). It was contended, however, that Mr Rokobatini's history of criminal offending dating back to 1995 when he was first convicted of an offence in the Children's Court did bring him within the parameters of paragraph 13(b) of the Policy Direction. In relation to Mr Rokobatini's general history of criminal offending it should be noted that he committed the deportable offences only a few weeks after reaching the age of 18 and that his subsequent conviction in the District Court at Parramatta of these offences was the first occasion on which he had been dealt with by an adult court.
Mr Rokobatini did not dispute the general history of his previous convictions. There was, however, significant dispute between the parties about the nature and scope of Mr Rokobatini's attempts at rehabilitation and the contribution that he might make in the future to the Australian community (Policy Direction: 13(c)). Attention is now turned to the evidence presented to the Tribunal about this particular factor.
Performance in Prison
Official records obtained from the New South Wales Department of Corrective Services showed that during the course of serving his prison sentence Mr Rokobatini had been found guilty of a number of offences involving breaches of prison discipline. Thirteen such offences were recorded in 1997, four in 1998, and two during 1999 after he had been notified about the order for his deportation (R2). These prison offences included having drugs in urine, threatening language, damaging property and failing to comply with prison officers' directions and prison routine.
Two witnesses were called to given evidence on behalf of the respondent in regard to certain of these prison offences. Mr Atul Jain, a prison officer, testified about a report that he had made under the New South Wales Prisons Act (1952) in relation to an incident which had occurred on 28 May 1999 involving Mr Rokobatini and some other prisoners (transcript 14 March 2000: 5-10). Mr Jain, who was at the time based at the Metropolitan Remand Centre at Long Bay prison in Sydney, said that he had been asked for blankets by some prisoners. He had gone to a storeroom to obtain the blankets and once there one of the inmates had pushed past him and while he was trying to get him out other inmates also jumped in including Mr Rokobatini. Mr Jain said that there were about four prisoners in the storeroom and he had been "frightened and intimidated" and had tried to get out of the storeroom but was prevented for a while from doing so. He was fearful that he might have been assaulted as there were no other officers nearby and he was outnumbered by the prisoners.
Following this incident Mr Rokobatini and one of the other prisoners who had been involved in it had said to him that he was very lucky. Mr Rokobatini had laughed and said he was only trying to help. Mr Jain denied that Mr Rokobatini had provided any such assistance to him. A charge and conviction of threatening behaviour resulted from this incident (R2).
Mr Gordon Wade, a correctional officer with 28 years of service, testified about another incident involving Mr Rokobatini which had occurred on 26 August 1998. At the time Mr Wade had been a unit manager at the Goulburn Correctional Centre where Mr Rokobatini was also located. Mr Wade confirmed the contents of a report that he had provided to the Governor about a refusal by a number of prisoners, including Mr Rokobatini, to follow officers' directions to go to work (see T: 180 and transcript 14 March 2000: 15-23).
Mr Wade said that it had been his strong opinion that on this date Mr Rokobatini had been one of the leaders of the group that had refused to obey orders and had been advising other inmates not to go to work. Mr Wade did agree that the reason for the discontent among the prisoners was the decision made by the Governor of the prison to fine each of them for causing damage to a motor vehicle. The refusal by Mr Rokobatini and others to work was a protest against what was perceived to be an unjust punishment for an action in which they had not been involved. As a result of his actions Mr Rokobatini was charged with refusal to work and sentenced to 14 days of segregation.
During the course of his personal testimony to the Tribunal Mr Rokobatini did not dispute that he had been convicted of various prison offences including the two described in some detail by Mr Jain and Mr Wade. However, in regard to the refusal to work incident he confirmed that he had protested because he felt that the group punishment which had been imposed was unfair (transcript 13 January 2000: 13-14). He also denied that he had in any way intended to intimidate Mr Jain and had only been seeking to assist him. If he had not done so he believed that Mr Jain would have been assaulted (transcript 12 January 2000: 53-54).
Mr Rokobatini's performance in prison, including his disciplinary offences, was the subject of a report to the respondent's officials at the time that Mr Rokobatini was being considered for possible deportation. The report, dated 12 February 1998 from the Senior Assistant Superintendent of Parklea Correctional Centre where Mr Rokobatini was then being held in custody, stated that:
During inmate Rokabatini's incarceration at Parklea Correctional Centre, he has fourteen (14) offence's [sic] in custody recorded against him. It is to be noted that five,(5), of these offence's [sic] were drug related, (cannabis).
Further to the above, Rokabatini was placed on Short Term Management, (off normal discipline), on three, (3) separate occasions during his remand status,(intimidating other inmates). Due to the drug related offence's [sic], Rokabatini was taken off contact visit status for a period greater than his Earliest Possible Release Date, that being 30/9/98. Rokabatini was given access to the Drug/ Alcohol programme whilst at Parklea, (current non contact visit regime 15/4/99). Rokabatini's case notes indicate a general non acceptance of Unit rules and overall poor acceptance to authority. Given the previously mentioned incidents of, drug abuse, short term status, and non commitment to the Young Adult Offenders Programme, Rokabatini has had his classification increased from a C1, (minimum status), to a B classification, (medium security), with a recommendation that he be transferred to Bathurst Correctional Centre, this recommendation is currently pending approval.
Industry/Diligence.
Rokabatini is currently employed in the Metal Shop, his industrial reports are comparable to his custodial reports. During the committee meeting that recommended Rokabatini's transfer off the Young Adult Offenders Programme, it was noted that a poor work ethic was demonstrated by Rokabatini.
(T: 258)

Parole Reports and Consideration

A Parole Review Report about Mr Rokobatini was prepared in June 1998 as the expiry date of his minimum term, 30 September 1998, approached. In this report it was noted that Mr Rokobatini was being held at the Goulburn Correctional Centre and had progressed to a C1 or minimum classification. The report noted his disciplinary offences and also referred to Mr Rokobatini's post-release plans to live with his parents. It was stated that Mr Rokobatini had expressed remorse for the offences that he had committed and had also attended some drug and alcohol courses during his sentence but had done very little about this issue since arriving at Goulburn. It was further stated that a recent home visit by parole officials to his parents had revealed the fact that Mr Rokobatini had a serious gambling problem. Mr Rokobatini had acknowledged this problem and said that he was willing to seek appropriate counselling. The report concluded with the following assessment:
The prisoner is serving his first sentence in a [sic] adult gaol. The fact that he has fifteen internal offences against him in the last year is cause for concern. Apart from the obvious drug problem, these offences highlight the fact that he has a problem controlling his anger, and that he lacks respect for authority. The newly admitted gambling problem is also a cause for consideration.
He has always sought to find employment while in custody and is regarded as a satisfactory worker.
He has a great deal of support from his parents and family, and the opportunity to gain experience as a panel beater and spray painter. He has also expressed interest in assisting his father in his work for the church.
He has been made aware that any return to drug usage, gambling or offending will mean a return to custody.
Release to parole cannot be recommended at this stage. It seems clear that the prisoner needs to put more effort into tackling his drug and alcohol and gambling problems. He also needs to develop a more assertive approach when his associates encourage him to break the law.
It is suggested that consideration be postponed for a period of six months. During this time Mr. Rokobatini should seek transfer to a minimum security institution where he has easier access to counselling (Drug and Alcohol, Gambling, Psychological), education, employment, and a pre-Release course. It would also give him the opportunity to improve his response to internal gaol discipline.
(T: 261)
A further supplementary parole report was prepared about Mr Rokobatini by the Junee Parole Unit on 16 September 1998. In this report it was stated that:
As the offender has done little to address his problems while in custody, it would appear that the risk of reoffending is very high.
(T: 189)

The report went on to note that Mr Rokobatini had admitted that all of his offences had been drug and alcohol and/or gambling related and he did not appear to have made any serious efforts to address these particular problems. Until he did so the report stated he would remain at high risk off reoffending. Since the prior parole report of 19 June 1998 Mr Rokobatini had two further prison offences including the incident at Goulburn concerning a refusal to work. Mr Rokobatini was said to have completed some counselling about his gambling problem.

Shortly after this report was prepared Mr Rokobatini appeared at a Parole Board Review hearing on 21 September 1998. It was determined that he was not suitable for release to parole and he was returned to the Goulburn Correctional Centre and his classification was changed from C1 to B, a maximum security rating, principally because of the internal prison offences of not complying with directions of which he had been convicted earlier in the year (T: 191).
In the further and supplementary parole report prepared at Goulburn Correctional Centre during October 1998 (T47) it was stated that having been placed in maximum security Mr Rokobatini no longer had any real access to developmental or therapeutic programs including drug and alcohol counselling. It was indicated that Mr Rokobatini had been frustrated by this and that when he had had an opportunity to have counselling for his gambling problem he had accepted it with interest. The report concluded with the following recommendation:
While I would prefer the prisoner to demonstrate a change in behaviour by avoiding prison offences for a minimum period of six months, I can see little value in his continued incarceration, without access to therapeutic programs. He would have more change of receiving the necessary help while at liberty, and under close supervision.
Release to Special Category Parole is recommended, with the addition of terms 12 (alcohol), 14 (drugs), 16 (urinalysis) and 23 (psychological and other assessment and treatment).
(T: 191-192)
On 16 November 1998 the Parole Board did recommend Mr Rokobatini's release, no later than 23 November 1998, as a special category parolee (T48). However, as already noted, the respondent's officials then ordered that Mr Rokobatini be held in immigration detention rather than released to parole (T49). He has remained in such detention since 20 November 1998.
Psychological and Psychiatric Assessments
Since being held in immigration detention and to assist the Tribunal in its present deliberations, Mr Rokobatini has been assessed by two experts – Ms Anita Duffy, a clinical psychologist, and Dr Gordon Davies, a forensic psychiatrist.

Ms Duffy provided a written report to the Tribunal (A4) and also gave personal testimony (see transcript 14 January 2000: 23-53). Ms Duffy indicated that she had interviewed Mr Rokobatini and conducted various psychological assessments of him at the Silverwater Correctional Centre on 9 December 1999.
In her written report Ms Duffy provided some quite detailed information about Mr Rokobatini's personal background, including his schooling, and his involvement in a range of criminal activities leading up to the commission of the deportable offences:
… He is the second oldest in his family having an older sister, two younger brothers and a younger sister, ranging in age from 24 down to 5. His father is a pastor in the Christian Church at Macquarie Fields and prior to that was working at IBM. His mother also works but Ben is not sure in what capacity.
Ben grew up with his family in Fiji until 1988 when he arrived in Australia. He had started his education in Fiji and continued at Regents Park Public School and then Birrong Boys High. He says he was a reasonable student but went down hill during his high school because he hated it. He said that it was "hell" and a "nightmare" because he was the only Fijian at school and the others always made racist comments and excluded him so that he felt isolated. He obtained a mediocre School Certificate result and during that year had also gone to Bankstown TAFE where he did a panel beating course two days a week.
By the time he got to year 11, Ben had made friends with a group of Lebanese students and whilst in their company, he truanted frequently and began to use alcohol and drugs. He said that they were the only ones who accepted him and he went along with them in order to continue the friendship and gain their approval.
He eventually dropped out of school part way through year 11, as he was taking long periods of time away from school to be with his friends. He also partially left home, staying with a number of friends and visiting his family occasionally. His parents kept lecturing him whenever he saw them, but at that stage he did not listen to them. He said that he and his Lebanese friends were often staying in a house of a friend of theirs, Houda, a woman slightly older than themselves who had her own flat. He says that during this period his "life of crime" began.
He was in custody for a month, in juvenile justice, at the end of 1995 and on his release continued to live at Houda's. He went into custody again in August 1996 and was at Mount Penang for 7 months. He was working digging trenches but did not attend any rehabilitation programs. When he came out in March, he lived with his parents and was unable to get a job. He was only out for three weeks when he was arrested for his charge of Robbery in Company…
(A4: 2-3)
Ms Duffy said that Mr Rokobatini had told her that he had started smoking marijuana while he was still in at school. He had described his intake as "heavy". He began to drink alcohol heavily during 1996 and also commenced smoking heroin which he often used in association with marijuana. He said that he had never injected heroin. He had continued to use marijuana while in custody in 1997 and this accounted for the disciplinary offences of drugs in urine. He claimed that he had had clean urine samples and had not used drugs since he had left the Parklea Correctional Centre in 1997. Mr Rokobatini also told Ms Duffy of his gambling problems. He said that he had some counselling about this problem while at Goulburn Correctional Centre, and that he did not believe that he any longer was a compulsive gambler.
From her psychological testing of Mr Rokobatini, Ms Duffy found no evidence of any severe personality pathology or disorder. On the basis of her testing Ms Duffy concluded that Mr Rokobatini showed no significant aggressive or passive aggressive features but a slight propensity towards impulsive and often self destructive behaviour which might account for his responses to what he regarded as provocation by prison officers during the time that he was held in custody at Parklea Correctional Centre.
Ms Duffy said that in her opinion there was evidence that Mr Rokobatini was attempting a more positive approach to his incarceration over the past year and this was evidenced by his drug free urine samples and the fact that he had been recommended for parole in November 1998. However, Ms Duffy also acknowledged during the course of her personal testimony that she had not been told by Mr Rokobatini about his most recent prison disciplinary offences. Cross-examined by Mr Johnson, on behalf of the respondent, Ms Duffy agreed that Mr Rokobatini's account to her of his prison performance might not have been accurate and that he might have glossed over things in some ways. However, Ms Duffy also said that Mr Rokobatini had been quite forthcoming about taking drugs in gaol and describing the trouble that he had had with the prison authorities. He had not been so frank about his threatening or intimidating behaviour (transcript 14 January 2000: 36).
In both her written report and personal testimony Ms Duffy indicated that it was always difficult for anyone who had been kept in custody for a long period like Mr Rokobatini to adjust to the pressures and demands of life outside prison. She said that Mr Rokobatini would need support including additional counselling for his gambling, drug and alcohol abuse problems if released back into the community. Ms Duffy expressed the view that Mr Rokobatini did have the potential to mature into a responsible citizen and that with supervision, persistence and support he could be successfully rehabilitated. She said that:
It would be extremely detrimental for his personal and emotional development if he were to be separated from such strong supports of his family and his home environment and deported to Fiji. Apart from causing anxiety, depression and reactivating fears of rejection and abandonment, that he has had to deal with through much of his life, the difficulties of adjusting to a new culture in a country he is barely familiar with would tax his resources considerably. He would indeed fall prey to malevolent influences in Fiji in an effort to gain acceptance or approval. Thus, any progress in his rehabilitation could be negated by his deportation.
(A4: 7)
As in the case of Ms Duffy, Dr Gordon Davies provided a written report to the Tribunal (R6) and also gave personal testimony (see transcript 14 January 2000: 24-41). Dr Davies indicated that he had examined Mr Rokobatini at the Metropolitan Reception and Remand Centre at Silverwater on 16 February 2000. Dr Davies said that Mr Rokobatini had been cooperative and that he had found "no evidence of any disturbance of though [sic] processes such as delusional ideation or of any perceptual abnormality" (R6).
Based on his examination of Mr Rokobatini, and his review of the background material that had been supplied to him, Dr Davies concluded that:
… I am of the opinion that the majority of Mr. Rokobatini's antisocial behaviour currently relates to drug use rather than to any other specific psychiatric disturbance. Within his current environment, this is contained, but it is premature to regard him as sufficiently rehabilitated not to have a high risk of relapse in the broader community. While he has received some counselling during his detention, both for drug related issues and gambling this could in no way be regarded as curative and is better seen as groundwork for a longer term programme. In the meantime the statistical risk of further offence is high.
Rehabilitation programmes in Australia are in short supply and he would not find it easy to gain entry. Also, given his generally confrontational personal style there must be some question as to his ability to conform to the requirements of a residential rehabilitation centre. I do not know what would be available to him in Fiji or the general availability of drugs apart from Kava there.
In the longer term, (given the current clinical indications of around 10 years) there is some prospect that Mr. Rokobatini would have a more stable and mature outlook and that he would be in a position to contribute positively to Australian Society [sic]. The short term outlook is less positive.
In relation to the question of the psychological impact of deportation is more difficult as there are both positive and negative aspects. I am of the opinion that his continued time in custody is having a negative effect and I note that this view was also expressed in the final Parole report from Goulburn. In this regard his release and deportation to a free environment is clearly positive. On the other hand, his separation from his immediate family will increase and will undoubtedly be a source of some emotional distress. However, I would expect that he would adjust to this without gross mental illness. Mr. Rokobatini confirmed that he has relatives of his parents still in Fiji.
In summing up I would like to note a reservation in regard to the decision in favour of deportation if this were to result in an inability to later apply for re-entry to Australia to re-join his family at a later stage.
(R6)
In the course of his personal testimony Dr Davies stated that he had been involved in a professional capacity in drug counselling and treatment for about 30 years. He confirmed his opinion that the majority of Mr Rokobatini's anti-social behaviour related to his drug use rather than to any specific psychiatric disturbance. He also indicated that he felt that Mr Rokobatini would find it difficult to gain entry to a drug rehabilitation program. His lack of respect for authority and obeying rules might also mean that he would be expelled from any program to which he did gain entry. Dr Davies further stated that it was very difficult to deal with a gambling problem through counselling.
Cross-examined by Mr Kessels, on behalf of the applicant, about his report and related opinions concerning Mr Rokobatini's prospects of rehabilitation Dr Davies agreed that there were a number of programs available in the area of metropolitan Sydney to provide counselling for both drug and gambling problems. It was possible that while under parole supervision Mr Rokobatini might gain entry to these programs. Dr Davies said that he did not know whether programs of this type were available in Fiji. If Mr Rokobatini was able to free himself from the use of drugs, and obtain stable employment and work, he might well make a contribution to Australian society if allowed to remain in this country. If returned to Fiji, while he did not believe that would precipitate a mental illness, it could cause hardship and distress to Mr Rokobatini and his family.
Deterrence
A third factor referred to in the Policy Direction relevant to an assessment of the level of risk to the community is the possibility that the deportation of a person like Mr Rokobatini will act as a deterrent to others (Policy Direction: paragraph 14). The Tribunal did not receive any specific evidence regarding this factor but the issue will be discussed further at the conclusion of this decision.
Hardship
Paragraph 21 of the Policy Direction observes that:
It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include:
the degree of hardship which may be suffered by the potential deportee; and
the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration).
(Policy Direction: paragraph 21)
In assessing the degree of hardship which may be suffered by Mr Rokobatini, paragraph 22 of the Policy Direction provides a list of a range of factors which are likely to be considered by decision-makers. This list includes:
whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported;
the degree and extent of the potential deportee's ties with the likely country of return;
the strength of other family, social or business ties in Australia;
social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.
(Policy Direction: paragraph 22)
It was not contended on behalf of Mr Rokobatini that he now had any ongoing marital or defacto relationship with an Australian citizen or resident (paragraph 22(a)). It was contended, however, that Mr Rokobatini had spent the greater portion of his formative years in this country, that he had few ties with Fiji, and that he retained strong family and related affiliations with Australia (paragraph 21(b), (c) and (d)).
A number of witnesses, including Mr Rokobatini's parents, testified in person about his ties to both Fiji and Australia, as well as their perceptions of the hardship that he and his family would experience should he be deported (see in general transcript 13 January 2000: 17-87; 14 January 2000: 2-22). This personal testimony was also supplemented by statutory declarations provided by a number of these witnesses (see A2-A3; A8-A9).
Mr Rokobatini's father, Joseph Arthur Rokobatini, stated in his personal testimony that he had recently received his full credentials as a pastor of the Campbelltown Christian Fellowship based at Macquarie Fields (transcript 15 March 2000: 7). Pastor Rokobatini described how he had brought his entire family from Fiji in May 1988. At the time the family comprised his son Ben and an older daughter, Seli, and a younger son Roland. There were now two younger children who had been born in Australia - Sarki and Ima. Pastor Rokobatini said that Roland had also been trouble with the criminal justice system and was currently in detention at Mt Penang.
Pastor Rokobatini said that before becoming a full-time clergyman he had worked for IBM and this employment had involved very lengthy nightshifts which had affected his family life and made it difficult to be responsive to his children's needs. In his current job as a full-time minister he was now responsible for working with youth. It was his plan that should Ben be allowed to stay in Australia he would involve him in this youth work during the periods that he was not employed in a full-time position that he had been offered by a neighbour, Mr Jeff Chehine Nametala, Pastor Rokobatini said that it was also planned that Ben would live in the family home once he was released from prison (transcript 15 March 2000: 12-14).
Questioned about the type of support that Ben might receive from family members who were still living in Fiji, should he be deported back to that country, Pastor Rokobatini said that he did not deny that Ben would get some support from his immediate relatives. Asked to explain to the Tribunal the hardship that he and his family might suffer if Ben was to be sent back to Fiji Pastor Rokobatini said:
Well, I think as a father, he is my older son and I'm speaking also from the experience of a to be left without the mother and the father because I was brought up in a broken family and I know what the situation in Fiji and I know all my relatives they how they see things in a way. Because I know I can – the hardship is that I don't deny that Ben – that nobody there will be waiting at the airport, there will be somebody but my thing was that because of Ben's past, and all these things they read about him, my question was that how long they will accept him. Because he was brought here as a young boy, he doesn't speak Fijian and he was all his time was educated schooling was all in Australia, this is all the things that really affects us as a family, leaving my eldest son it really hurts.
And you've got two younger children?---Three younger children.
Three who were younger than Ben?---Yes.
But two who are living at home, young ones?---Mm.
Do they go with you to visit at the goal [sic]?---Yes, yes sir.
And you've observed their relationship with him, how would you describe that?---How they - they are very close to Ben. They all expect one day that Ben will come home. They keep on asking me all the time, when is Ben coming? They are very close.
Does Ben call you from the goal [sic]?---He calls almost every day.
Does he speak to the children as well?---He speaks to both of them when they are at home.
(transcript 15 March 2000: 14-15)
During the course of his cross-examination of Pastor Rokobatini Mr Johnston queried him about his plan to involve Ben in his outreach activities with young people. Mr Johnston suggested to Pastor Rokobatini that there was a risk that should Ben become involved again in illicit drug and related criminal activity his contact with young people could well be detrimental rather than beneficial. Pastor Rokobatini agreed that this was a risk that had to be faced, and that he had also been able to exert little influence in the past upon his son's behaviour (transcript 15 March 2000: 20-21).
Mr Rokobatini's mother Mrs Sotiana Rokobatini, described the difficulties that Ben had encountered with schooling once he had come to Australia in 1988. She said that he had been a very obedient boy and a good student up until about the time that he reached Year 11 when he began to change. He began to mix with friends who were a bad influence and he began to leave home and not attend school. The school had eventually asked that she go with her husband to discuss Ben's behaviour. He then became involved in various offences and she had accompanied him to the Children's Court. Since Ben had been in prison she had been in frequent contact with him either through personal visits or on the phone. She confirmed that if he was released from prison and allowed to stay in Australia Ben would return to live with the family. If he were to be deported back to Fiji this would cause her substantial distress. She did have relatives who were still in Fiji, all of whom lived in Suva, but she was not close to any of these family members (see in general transcript 14 January 2000: 2-9).
Cross-examined by Mr Johnston, Mrs Rokobatini confirmed that the relatives that she did have in Suva would seek to help Ben. She also agreed that the language used in Suva was principally English and that Ben would not have difficulty adjusting to life in Fiji because of a failure to understand the language (see in general transcript 14 January 2000: 9-22).
Mr Jeff Chehine Nametala, a neighbour of the Rokobatini family, gave personal testimony about the willingness of a construction company owned by his family to employ Mr Rokobatini if he was not deported. The work would involve various tasks associated with construction. Mr Namatala said that he was well aware of Mr Rokobatini's criminal record. Depending upon his progress in the job they would also be prepared to offer him training opportunities through TAFE and related courses. Mr Namatala said that his company had employed people who were on parole in the past but that there had not been any discussions with parole officials about their employment of Mr Rokobatini (see in general transcript 13 January 2000: 30-37).

In addition to this evidence regarding employment prospects for Mr Rokobatini the Tribunal heard testimony from Mr Alosio Waininall, a friend and relative of the Rokobatini family, about his willingness to involve Ben in part-time voluntary work providing lunches and other services in a school. This voluntary work was performed by Mr Waininall as part of his involvement with a church which offered outreach and other services to young people who had been in trouble with the law (see in general transcript 13 January 2000: 37-61; 82).
Paragraph 21(f) of the Policy Direction, set out above, also mentions as a factor to be considered by decision makers the situation prevailing in the country of proposed return, including the overall environment, job opportunities or the possibility of further criminal sanctions. Certain of the evidence already referred to from Mr Rokobatini's immediate family related to this issue. However, two witnesses, Pastor Tevita Vuli and Mr Angus Murray Pryor, provided more specific testimony about current conditions in Fiji. Pastor Vuli, an ethnic Fijian born in that country in 1946, stated that he had been educated, trained and employed in Fiji until 1987 when he migrated to Australia. While living in Fiji he had been a senior public servant in the civil aviation sector as well as a training officer in the trade union movement. He was now a practising minister in the Assemblies of God Church in Australia and in that capacity he worked in collaboration with Pastor Rokobatini. He stated that he had known the Rokobatini family in general for many years and that Pastor Rokobatini had previously worked with him in the civil aviation industry in Fiji. He had very regular contact with the family since they had come to Australia and was very familiar with the circumstances surrounding Ben's involvement with the criminal justice system, and his subsequent imprisonment and possible deportation (see transcript 13 January 2000: 61-65).
Pastor Vuli said that he was a constant visitor to Fiji, having been most recently in that country in November and December 1999. He also had a sister who was living in the area called Navua where Mr Rokobatini had been raised as a child. He said that his sister had two sons and two daughters. One of the sons had married but the rest of the children still remained at his sister's home and that all of them remained unemployed. Pastor Vuli said that there were a lot of youth in the area and youth unemployment, was on his observation, very high. He also said that the Fijian branch of the church provided various types of counselling and related services but they were not well organised and counselling for problems like that being confronted by Mr Rokobatini were "available to [a] very limited degree" (see in general transcript 13 January 2000: 65-67).
Cross-examined by Mr Johnston about his current knowledge of the economic situation in Fiji Pastor Vuli said that while he might not be familiar with the economic statistics generated in Fiji by the Reserve Bank he did know how people lived and understood the real experience of a commoner and the commonplace in Fiji. He admitted that he was a very good friend of Pastor Rokobatini but denied that this had influenced his views about Ben and the assistance that he had provided to him. Pastor Vuli said that he had not been aware of the specific amounts that Mr Rokobatini had been spending to support his drug and gambling problem but he did know he was in trouble. He agreed that at the present time there were no legal casinos or poker machines available in Fiji. He also agreed that while there were some drug problems in Fiji these were generally limited to marijuana and the drinking of kava.
Mr Johnston suggested to Pastor Vuli that in comparison with Fiji, Australia was generally a more risky environment for someone like Mr Rokobatini who had a heroin and gambling problem. Pastor Vuli disagreed, stating that in Ben's case he had the support in Australia of his immediate family which he would lack if he were to be returned to Fiji (see in general transcript 13 January 2000: 76-85).
Following the completion of his testimony to the Tribunal Pastor Vuli submitted a further statement (A8) concerning issues that had been raised during the course of giving his testimony. Among other things, he noted that he remained in close contact with the Prime Minister of Fiji, Mahandra Chaudry, and that he had met with the Prime Minister during the course of a visit that he had made to Australia in 1999. At the time he had discussed with the Prime Minister the situation and economy in Fiji. He indicated that he had had an association with the Prime Minister which spanned nearly 20 years.
Mr Angus Murray Pryor, the senior migration officer in the Australian High Commission in Suva, also gave personal testimony to the Tribunal regarding a document which he had prepared titled Report on Issues Relating to Living in Fiji (R3). Mr Pryor said that he had worked in his current position at the High Commission since July 1997. The duties he performed at the High Commission included making decisions on migration applications as well as those for temporary entry into Australia. He said that his duties brought him in close contact with the local community and he also had a high level of contact with a number of public and private organisations in Fiji. He had also observed a number of cases in which persons who had been convicted of criminal offences abroad had returned to Fiji. It was his recollection that some of these returnees had been able to obtain employment. He said that the role of the extended family, in particular that of aunts and uncles, was very important in the Fijian culture. The extended family concept was much more far reaching than would be the case in Australia and it was not uncommon for that extended family to feel some sort of obligation to accommodate and support their less fortunate relatives (see in general transcript 14 January 2000: 55-57). Mr Pryor was asked directly about his assessment of the prospects of a person with Mr Rokobatini's background obtaining employment in Fiji as opposed to finding employment in Australia. He responded in the following way:
…I would - I mean, from what you've described, I would say that his chances of getting employment here would be no worse than Australia. The reason I say that is, if he's fit and healthy, he speaks English well, that's a good start. To be quite honest, the fact that he's spent some time in Australia may work to his advantage. The criminal record aspect, it seems to me, if it happened in Australia that may not be immediately obvious to employers here. The reason I mention about having spent some time in Australia may be an advantage is an extremely significant industry here is the tourist industry. The highest number by far of tourists coming to Fiji come from Australia. Not that far from Navua, a bit further round the coast, is the start of the Coral Coast where there's a whole lot of resorts there and, you know, suffice to say there'd be a lot of Australian tourists there. The resorts by and large employ a lot of locals, not surprisingly, and, you know, they're often in unskilled positions so they don't need to be previously particularly skilled; and if someone has had experience in Australia, even just living there, in some ways that may help them. Presumably their English may be arguably just that little bit better than a local person.
Yes, please go on?---Well, it just occurred to me that, with what you describe, his employment prospects in Australia may not be all that good at all and in fact in some ways in making a clean break, as I said, an employer here may be unaware of any sort of criminal activity in Australia; I would think that it would be as good here if not better.
Have you yourself seen anyone employed in the tourist industry in Fiji who has had a criminal record but is able to speak English?---Yes; as a matter of fact, yes. I must admit I was a bit surprised. I've seen a few of them where we've had people who have applied for a visa from this office and one of the questions they have to answer on the application form is whether they've had any convictions and I've seen a number of cases, including people working in the resorts; they speak English and have, you know, maintained employment there.
(transcript 14 January 2000: 58-59)
Under cross-examination by Mr Kessels, on behalf of the applicant, Mr Pryor admitted that obtaining statistics in general in Fiji was not an easy matter and that this was especially so in relation to getting accurate information about levels of youth and rural unemployment. He also agreed that the rates of rural unemployment were likely to be higher than those prevailing in urban areas of Fiji.
Mr Pryor admitted that he had no direct knowledge of Mr Rokobatini or his family either in Fiji or Australia. As such he was not in a position to know whether they would or would not be able to offer Mr Rokobatini assistance should he be deported to Fiji. Mr Pryor said, however, that it was his impression that the extended family was as important in Fiji as the immediate family and that many immediate family members departed to work overseas for extended periods without creating major difficulties for the family at large.
Questioned by Mr Kessels about the information contained in his report concerning rehabilitation programs in Fiji for ex-offenders Mr Pryor admitted that he had little knowledge about the extent to which persons could gain entry to these services, nor about the level of resources which were committed to their operations (transcript 14 January 2000: 69-70).
Paragraph 21(b): Other Persons
Mention has already been made of the evidence provided by Pastor Rokobatini and Mrs Rokobatini concerning the hardship that they said they would experience if their son Ben were to be deported to Fiji. Pastor Vuli in his evidence confirmed that in his view this hardship would be severe and emphasised the close bonds that existed between the various members of the Rokobatini family (transcript 13 January 2000: 64).
CONSIDERATION
Policy and Submissions
As is apparent from the chronology of events set out at the commencement of this decision this matter has now been the subject of extensive review both by this Tribunal and by the Federal Court. The present hearing of this matter occupied five days and the Tribunal had the benefit of receiving substantial and additional evidence about a number of the factors relevant to its decision making function within the framework of the Act and the Policy Direction.
In their respective submissions to the Tribunal both parties referred to the circumstances which had led to the remittal of the case back to the Tribunal by the Full Federal Court. Mr Kessels, on behalf of the applicant, stressed that the Tribunal was not in any way bound by what the Full Federal Court had said about the potential prospects of success in Mr Rokobatini's case when it did make this remittal. Justices Whitlam and Gyles in their joint decision had said that they did not agree that deportation was the inevitable result of a proper de novo consideration of the matter in accordance with the Direction. Both justices had gone on, however, to state that:
This is not to suggest, of course, that the appellant will necessarily succeed before the Tribunal. It is for the Tribunal to assess the severity of the hardship, and then to carry out the weighing process which is required by the Direction. It is merely to indicate that the possibility of success is not insubstantial.
(paragraph 28)
In his submissions made on behalf of the respondent, Mr Johnston did not demure from the contentions made by the applicant concerning the way in which the Tribunal should go about its decision making task. Mr Johnston and Mr Kessels were also in agreement that the Tribunal should adopt the approach proposed by Sackville J in Danionel Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713, its construction of the Policy Direction, and in particular to its consideration of paragraph 21 of that Direction. Justice Sackville's approach is outlined in the following passage from that decision:
39 Mr Johnson submitted that, properly construed, the Direction is not intended to preclude the AAT from considering the particular circumstances of each case, including the degree of hardship likely to be suffered by the potential deportee or members of his or her family. It is therefore open to the decision-maker to find, depending on the circumstances of the case, that the likely hardship outweighs the 'primary consideration' of the expectations of the Australian community (par 6(a)). And this may be so even if the potential deportee has committed very serious offences.
40 In my opinion, this approach to the construction of the Direction is correct. If the Direction were intended to have the rigid operation attributed to it by Mr Game, there would be little point in the express recognition in par 5 that the decision-maker should adopt a balancing process that takes into account all relevant considerations, not merely the two primary considerations. Similarly, there would be little point in the acknowledgment in par 21 that it is relevant to consider the degree of hardship which may be suffered by the potential deportee or member of his or her family. As par 22(b) implicitly recognises, even potential deportees who have committed serious criminal offences may escape deportation if, for example, they have spent the greater proportion of their formative years in Australia. Moreover, there is a well-established principle that if an instrument can be construed so as to avoid being held ultra vires, that interpretation should be adopted: D Pearce and S Argument, Delegated Legislation in Australia (2nd ed 1999), par 30.4; see also Hong v Minister for Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].
41 It follows that, despite some ambiguity in the language, par 21 at 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. This conclusion does not resolve all questions of construction of the Direction, and perhaps not all questions going to validity, but it is sufficient for the purposes of the present case.
(at paragraph 39-41)
The Tribunal accepts these contentions made on behalf of the parties about the way in which it should exercise its decision making function in Mr Rokobatini's case. The Tribunal also notes the observations of the Full Federal Court in Rokobatini as to the way in which it should approach the issue of rehabilitation and the risk of recidivism within the framework of the Policy Direction. In this regard, in their joint decision, Whitlam and Gyles JJ said:
The Tribunal was obliged to assess the degree of hardship which may be suffered by the potential deportee and, having done so, put its conclusion on that issue on the scales in the manner provided for by the Direction. The possibility of rehabilitating the appellant from a life affected by drugs, alcohol and gambling, and the almost certain exacerbation of those personal problems by reason of deportation, simply cannot be described as irrelevant to the Direction. To take that view is to misconstrue or simply not follow the Direction.
(paragraph 23)
In the same decision Katz J provided more expansive remarks about this aspect of the case. Referring to the statements made by McMahon DP in the Tribunal's earlier consideration of Mr Rokobatini's case, Katz J said the following:
78      What I do place particular reliance upon, however, are two statements by the Tribunal: first (see par 71 above), that '[I]ndividual rehabilitation is of relevance only in so far as it points to the extent of the risk of recidivism' ; and, secondly (see par 75 above), that whether,
'… sending the applicant back to Fiji would be likely to result in his involvement in further crime in that country … is an irrelevant consideration in the context of determining whether a deportation order should be enforced.'
79       In his often quoted reasons for judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J summarised in the following way (at 40) the law relating to the taking into account of irrelevant considerations in the exercise of a discretionary power:
'In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are … unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.…'
80 I can find nothing in the subject-matter, scope and purpose of the Act which impliedly excludes as a relevant consideration in the exercise of the discretionary power conferred by s 200 of the Act, because of circumstances specified in s 201 of the Act, the consideration whether, if the potential deportee is deported, he or she will lose the personal benefit of an increased chance of rehabilitation in Australia. Yet, it appears to me that, in the Tribunal's statements which I have quoted in par 78 above, the Tribunal was excluding such a consideration as a relevant one, not because of anything in the subject-matter, scope and purpose of the Act, but because, as the context in which those statements were made makes clear, it was of the view that the policy required such a consideration to be excluded as a relevant one. Most striking in that respect was the Tribunal's statement, offered, it appears plain to me, by way of explanation for its conclusion that whether a potential deportee would be at greater risk of recidivism if deported was an irrelevant consideration, 'I am bound to give most weight to the need to protect Australian society' (my emphasis). As I have already pointed out above, that statement came obviously from par 7 of the policy, which stated, 'Consistent with Government policy, most weight should be given to the need to protect Australian society'.
81       It is appropriate that I mention here that, in his submissions before us, the Minister conceded that, if the Tribunal's two statements which I have set out in par 78 above were properly to be read as I have read them in par 80 above, then the Tribunal had erred in law. However, he submitted that that was not how the two statements were to be read. Instead, he submitted, they were to be read as statements by the Tribunal, that, in the circumstances of the particular case before it, the consideration identified in them, though relevant, was outweighed by the contrary considerations in favour of deportation. Giving to the Tribunal's two statements that benevolent construction which I am required to give to them, I can only say that I am unable to read them as the Minister submits they should be read. They were plainly not, in my view, statements of the particular, but of the general.
(at paragraphs 78-81)
With these legal benchmarks in mind, and in accord with the terms of the Policy Direction, the Tribunal now considers the difficult balancing task it must undertake of the factors relevant to Mr Rokobatini's case.
Expectations of the Community
The primary consideration to which the Tribunal must have regard in deciding whether or not Mr Rokobatini should be deported is the expectation of the Australian community that it will be protected and not put at risk (Policy Direction: paragraph 8(a)). In this case it was not suggested by the respondent that Mr Rokobatini's offences were of the type that fell within the framework of paragraph 8(b) of the Policy Direction.

The evidence which was presented to the Tribunal concerning the three factors relevant to the assessment of the level of risk to the community and the need for its protection, has been set out above in considerable detail. Paragraphs 11(e) and (l) of the Policy Direction provide that any crimes involving violence or the threat of violence against persons are of special concern to the welfare and safety of the Australian community and are considered by the Government to be very serious. There is no doubt that the four offences of robbery in company of which Mr Rokobatini was convicted fit within this provision of the Policy Direction. It is also apparent from the evidence that Mr Rokobatini had at least one prior conviction for robbery while still a juvenile, and that this offence was referred to during the course of his sentencing by Johnston J on 16 December 1997.
The Tribunal is clearly bound by the sentence imposed by Johnston J in this case, as well as by the general findings made at the time of his conviction concerning the circumstances surrounding the commission of the offences: Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197. Judge Johnston's description of Mr Rokobatini's offences noted that they did involve some degree of planning and that they also caused terror to the victims. However, the custodial sentence which was imposed upon Mr Rokobatini, both in relation to the minimum and maximum terms set, indicated that it was a penalty set at the lower rather than the upper end of the gravity scale of an offence punishable by a maximum of 20 years imprisonment under the provisions of s97 of the New South Wales Crimes Act 1900. It is also clear from a reading of Johnson J's sentencing comments that he perceived a possibility of rehabilitation on Mr Rokobatini's part through the setting, after the minimum term, of a lengthy period during which Mr Rokobatini would be placed under the close supervision of a parole officer.
As noted earlier, Mr Rokobatini's conviction and custodial sentence for the deportable offences was the first occasion on which he had been dealt with by the adult system of justice, his period of prior detention having been spent in the juvenile justice system. Having only recently become an adult at the time of both committing and being sentenced in regard to the deportable offences, Mr Rokobatini was sent initially to Parklea Correctional Centre, an institution which provides specialised programs for younger offenders within the New South Wales adult correctional system. The evidence before the Tribunal shows that Mr Rokobatini did not adjust well to his custody in this institution and that he was convicted of a number of disciplinary offences including several that were drug related. Further disciplinary offences within the correctional system were recorded against Mr Rokobatini after he was transferred from Parklea, and they resulted in him receiving poor performance reports from correctional officials prior to his eventual recommendation for release to parole in November 1998. The Tribunal was provided with quite detailed accounts of the circumstances surrounding two of the disciplinary offences committed by Mr Rokobatini during his term of imprisonment. The Tribunal accepts the evidence that was given by Mr Atul Jain, and by Mr Gordon Wade, about these offences. They are offences, which in tandem with the other offences admitted to by Mr Rokobatini, indicate that throughout the majority of the time he has spent in prison he has displayed a general reluctance to accept prison rules and the directions of officers.
Despite these generally negative appraisals of Mr Rokobatini's performance in prison he was recommended for release to parole with the proviso that he should receive specific assistance upon release in dealing with his drug and gambling problems, and also remain under close parole supervision. It was suggested that there was no purpose to be achieved by his continued incarceration in maximum security where he had no proper access to any developmental or therapeutic programs. Mr Rokobatini has, of course, not been released to parole and has remained in custody until the present time.
In considering the evidence at large from the correctional authorities who observed and supervised Mr Rokobatini up until the time that he was placed in immigration detention it is clear that they assessed his prospects of rehabilitation as being quite poor and the risk of recidivism on his part as quite high. Most if not all of this information about his performance in prison, and his general background, was also reviewed by the two expert witnesses who provided evidence to the Tribunal: Ms Anita Duffy and Dr Gordon Davies. The Tribunal found both of these witnesses to be highly credible. Both had significant and extensive professional experience working with young offenders and both gave frank and thoughtful appraisals of Mr Rokobatini's prospects of rehabilitation. Neither suggested that in the short-term the rehabilitation pathways to be followed by Mr Rokobatini were paved with roses, nor that there were not significant obstacles to be confronted in relation to his access to and completion of appropriate drug therapy and related programs. Dr Davies, in particular, pointed to the general dilemmas which existed in obtaining placements in therapeutic programs for persons with drug problems. He also pointed to the need for anyone who did gain access to such a program to follow the rules or face expulsion.
The Tribunal found Ms Duffy to be rather more optimistic than Dr Davies about the possibility of Mr Rokobatini dealing successfully with his various problems should he be released back into the Australian community in the near term. With the strong family support that she perceived Mr Rokobatini to possess she felt that he could be rehabilitated and make a future contribution to Australian society if allowed to remain in the country. She felt the same situation would not prevail if he were to be deported to Fiji.
On the basis of all of the evidence before it the Tribunal is satisfied that the level of risk of Mr Rokobatini reoffending in some way if allowed to remain in Australia must be assessed to be quite high in the near term although in the longer term there does seem a much greater possibility that he will reach a stage of personal maturity, and adaptation to society, that would substantially reduce this risk. Having reached this finding the Tribunal now turns to the other factors which the Policy Direction, and the legal authorities which have been discussed earlier, require consideration as part of the balancing process in deciding whether or not Mr Rokobatini should be deported. This consideration must include, in particular in the circumstances of the present case, the hardship that might accrue to both Mr Rokobatini and to his family members if he were to be expelled from Australia.
Paragraph 22(b) of the Policy Direction deals in specific terms with the situation of potential deportees who have spent the greater proportion of their formative years in Australia. This provision of the Policy Direction indicates that it is less likely that such deportees will be deported although it is not the intention that they should never be deported. It was not a matter of dispute that Mr Rokobatini had spent the greater portion of his formative years in Australia. He was only nine years of age when he arrived here from Fiji in 1988 and he has not been back to his country of birth since that time. He went to both primary and secondary schools in Australia, and his predominant social upbringing and cultural experience has been in Australia, but within the context of a multicultural society which includes a quite large ethnic Fijian population. The evidence suggests that the process of adaptation to life in Australia was not easy for Mr Rokobatini who confronted racism at school, and the sense of dislocation associated with being transported from a relatively rural and isolated community setting in Levuka to the urban and densely populated confines of metropolitan Sydney. Within his own family Mr Rokobatini's parents were themselves going through a similar and stressful adaptation process including, in Pastor Rokobatini's case, being required to work long hours which precluded extensive contact and interaction with his children.
Regrettably, circumstances like these all too often form the fertile breeding ground for youthful rebellion and juvenile delinquency. The specific reasons why Mr Rokobatini lapsed into delinquent behaviours and became involved with fellow Fijian youths and other ethnic minority groups in a pattern of offending remain a matter for conjecture and are not of direct concern in the present proceedings. They are nonetheless circumstances which perhaps explain but do not excuse Mr Rokobatini's behaviour which led, ultimately, to his commission of the deportable offences. They are also circumstances for which Australian society should bear some responsibility since it accepted Mr Rokobatini as a youthful migrant in company with his family.
In the Tribunal's view it is Mr Rokobatini's family which provides the most positive prospect of him being rehabilitated through the provision of significant and sustained support of a variety of types. Mr Rokobatini's parents provided convincing and compassionate evidence about their efforts to raise their family of five children in a new country and of the struggles that they had to deal with the rebellious and delinquent conduct of their eldest son, Ben. They were unequivocal in their expression of ongoing support for him whatever the outcome of the case. They indicated that the extended members of the family who remained in Fiji would provide some form of assistance to Mr Rokobatini if he were to be deported but they also expressed both concern and doubt about the level of this support and its sustainability over time. The Tribunal accepts that Mr Rokobatini's deportation would cause severe distress and hardship to his entire family which would still appear to be a quite closely knit unit in spite of all of the confronting problems it has faced through Mr Rokobatini's criminal offending as well as that of his younger brother.
The prospects of Mr Rokobatini being successfully reintegrated into society, whether in Australia or Fiji, would seem to depend not only upon his level of family support but also on the opportunities that he has to obtain full-time and stable employment as well as access to adequate therapeutic programs to deal with his drug and related problems. The evidence before the Tribunal on the employment front included a direct offer of a construction job for Mr Rokobatini if released back into the Australian community. The Tribunal has no reason to doubt the veracity of this job offer which was made in the course of personal testimony provided by Mr Jeff Chehine Nametala. In addition to this offer, Pastor Rokobatini, and a friend and relative of the Rokobatini family, Mr Alosio Waininall, both described voluntary work that might be undertaken by Mr Rokobatini. While impressed with the sincerity with which these offers were made by both of these witnesses it would be a matter for consideration by parole authorities as to whether they were appropriate activities should Mr Rokobatini not be deported but released back into the Australian community.
Mr Rokobatini's prospects of obtaining employment should he be sent back to Fiji, together with other related economic and social factors which might impinge upon his adaptation back into Fijian society, received considerable attention during the course of the hearing as is apparent from the evidence which has been summarised earlier. Mr Pryor, the senior migration official at the Australian High Commission in Fiji, provided a quite positive overview of the economic situation in Fiji and suggested that despite having the handicap of a criminal record Mr Rokobatini was likely to be as employable in Fiji and he would be in Australia. Mr Pryor felt that the English language skills acquired by Mr Rokobatini would stand him in good stead in Fiji in industries like tourism. He also thought that there were some rehabilitation programs for ex-offenders in Fiji including drug counselling and treatment. He acknowledged, however, that he was not very familiar with the nature or scope of these programs.
The Tribunal found Mr Pryor to be a helpful and generally credible witness but he himself acknowledged that the economic and allied statistical data that was included in a document that he provided to the Tribunal (R3) was based upon data of questionable reliability and accuracy. His knowledge of the values and mores of Fijian community life was also acquired only through his two year posting to Fiji and his associated duties as a person vetting potential migrants and visitors to Australia form Fiji.
Pastor Vuli, an ethnic Fijian who has also lived in Australia for more than a decade, gave his assessment of the environment into which Mr Rokobatini would be injected through his deportation to Fiji. Pastor Vuli was subjected to a rigorous and extensive cross-examination about his qualifications, experience and motivations for providing this assessment. It was suggested, among other things, that he had only provided his testimony on behalf of Mr Rokobatini because he was a close friend and associate of Pastor Rokobatini and that he knew very little in person about his son's problems or how they might be resolved.
The Tribunal found Pastor Vuli to be a credible and impressive witness who acknowledged his professional and personal association with the Rokobatini family. This association had extended over many years and had commenced well before the Rokobatini family migrated to Australia. As a former senior public servant, and as a trade union official, Pastor Vuli indicated that he retained close ties with his country of origin and visited Fiji on a regular basis. He was also in close contact with many senior members of the government including past and present Prime Ministers. On the basis of this expertise and experience the Tribunal found that his account of the likely difficulties that Mr Rokobatini would experience in finding employment, in obtaining appropriate counselling and allied services for his drug and related problems, and in being exposed to further crime related opportunities, convincing and authoritative. In Pastor Vuli's opinion Mr Rokobatini's prospects of achieving any rehabilitation would be substantially reduced if he were to be returned to Fiji. He also confirmed that the Rokobatini family would be greatly distressed by his removal from Australia.
CONCLUSION
The ultimate and very difficult question which the Tribunal must now answer is whether the Australian community's expectation to be protected against the risk of Mr Rokobatini re-offending outweighs the other factors which must be considered as part of the balancing process under the Policy Direction. On behalf of the applicant, Mr Kessels contended that the balance should be found to weigh in favour of his client while Mr Johnston, on behalf of the respondent, contended that the risk of recidivism was too great for Mr Rokobatini to be allowed to remain in Australia. Mr Johnston further contended that the deportation of Mr Rokobatini would send a strong deterrent message to other non-citizen offenders that they too would face such a fate if they were to indulge in similar criminal behaviour.
On this occasion, having regard to all of the evidence and to the submissions made on behalf of both parties, the Tribunal is narrowly convinced that the scales weigh against deportation. This is a case in which despite the serious nature of Mr Rokobatini's criminal behaviour, and the associated risk of him re-offending, there is compelling evidence of severe hardship to both him and to his family if he were to now be sent back to Fiji. In particular, the prospects that he does have to be rehabilitated and become a contributing and law abiding person would be seriously diminished by sending him back to Fiji. In that country he would not have access to the same types of therapeutic programs, nor to the nurturing and closely supportive assistance of his immediate family that represent the positive, practical and essential components of any successful rehabilitation plan. In this country that plan would be further facilitated, upon his release from immigration detention, by his placement in a closely supervised parole program of the type which has already been envisaged by the Parole Board at the time of recommending his original release to parole in November 1998.
A decision to allow Mr Rokobatini to stay in Australia should not be viewed either by him, his family or by non-citizens at large contemplating criminal activities as a sign of weakness or a lack of determination to deal with criminal offending of this type in a resolute and deterrent manner. Mr Rokobatini and his family should by now be very well aware that should there be any re-offending on Mr Rokobatini's part he cannot expect any further sympathy or understanding. The onus is now on Mr Rokobatini to display the strength and resilience required to achieve his own rehabilitation and to avoid the consequences that would follow should he reoffend.
The decision under review is set aside and the matter is remitted back to the Minister with the direction that Mr Rokobatini not be deported.

I certify that the 174 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing
Date of Decision  June 2000
Solicitor for the Applicant         Mr R. Kessels
Counsel for the Respondent    Mr G. Johnston
Advocate for the Respondent Mr J. Fong