Safwan and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 1298

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1298

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2000/95

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Gehad Safwan

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date18 December 2003

PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes a decision not to exercise the power in s 200 of the Migration Act 1958 to deport the Applicant.

...............................................

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – DEPORTATION ORDER – applicant convicted of serious criminal offences including three deportable offences when a permanent resident of Australia for less than ten years - need to consider the protection and expectations of the Australian community – discretion the Tribunal may exercise – held that the Applicant’s risk of recidivism is low, long prison sentence has been sufficient deterrence, there would be hardship to his family – held that the considerations point to the Applicant not being deported – decision of the Respondent set aside – held that the power under s 200 of the Migration Act 1958 should not be exercised to deport the Applicant.

Migration Act 1958 ss 200, 201, 204(1), 499, 499(1)(2A)

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

18 December 2003	Mr RP Handley, Deputy President
Summary

1.      Gehad Safwan (“the Applicant”) and his family migrated to Australia from Lebanon in 1977 when he was 16 years old.  In about 1980, he became addicted to heroin and between 1980 and 1983 he committed a series of break and enter offences and armed robberies.  On 30 April 1985, Mr Safwan was sentenced to 29 years imprisonment.  The earliest date on which he can be released is 23 February 2004.

2.      On 28 September 1982, Mr Safwan was warned that although deportation was not then being contemplated, any further conviction would lead to deportation being considered.   On 17 December 1999, a Deportation Order was made in respect of Mr Safwan.   Mr Safwan has applied to the Tribunal for a review of this decision.  At issue is whether to exercise the discretion to deport Mr Safwan. 

Background

3.      Mr Safwan was born in Beirut, Lebanon, on 14 November 1960 and is aged 43.   He arrived in Australia on 1 March 1977, about four weeks after his parents and his five brothers and three sisters (T p92).   He was aged 16 years and three months at the time of arrival, the oldest child of the family.  Mr Safwan and his family were granted refugee status on arrival and settled in Sydney.   Initially, he worked in a factory and then as a labourer for the State Rail Authority (T p157).  He was retrenched from this position some two years later.  In approximately 1980, he became addicted to heroin.

4.      On 3 April 1982, Mr Safwan was convicted of three counts of break enter and steal and sentenced to a term of imprisonment of 12 months on each count (the second and third counts to be served concurrently but cumulatively with count one) (T p122) with a non-parole period of eight months.  On 28 September 1982, a delegate of the Respondent warned Mr Safwan that whilst deportation was not contemplated at that stage, any further conviction would lead to the question of his deportation being reconsidered (T pp132-133).

5.      On 10 August 1983, Mr Safwan was convicted of a further charge of break enter and steal and sentenced to two years imprisonment with a 12 months non‑parole period (T p66).   On 4 October 1983, Mr Safwan escaped from Silverwater Prison whilst in lawful custody (T p96).    During the time of his escape from lawful custody, he committed a series of armed robberies.  On 13 March 1985, he was convicted of the offences set out in the Table below.  On 30 April 1985, Mr Safwan was sentenced by Justice Maxwell of the New  South Wales Supreme Court Criminal Division to 29 years imprisonment.  No non-parole period was specified (T pp137-148).  On 6 November 1986, the New South Wales Court of Criminal Appeal dismissed Mr Safwan’s appeal (T pp32-41).  On 25 September 1989, the Applicant’s sentence was redetermined pursuant to the Sentencing Act 1989 as a term of 22 years three months and 13 days commencing on 11 November 1981. The earliest date on which he can be released is 23 February 2004 (Tp64).

6.      The following Table sets out Mr Safwan’s record of offences (T p60):

Conviction Date	Offence	Sentence
July 1980	Drive manner dangerous Drive whilst licence cancelled Drive unregistered vehicle	6 months periodic detention 6 months periodic detention Fined $100
16 October 1980	Assault Possess unlicensed pistol	Fined $200 Fined $300
April 1981	False pretences	3 year good behaviour bond
November 1981	Steal motor vehicle Break, enter and steal	9 months imprisonment
3 April 1982	Break, enter and steal (x3)	12 months imprisonment
10 August 1983	Break, enter and steal	12 months imprisonment with 12 months additional
13 March 1985	(i) Wounding with intent to do harm (ii) Assault with an offensive weapon with intent to rob (iii) Escape from lawful custody (iv)   Armed robbery (x9) (v) Attempted armed robbery (vi)  Possession of unlicensed [sic] (vii)  Possession of shortened firearm	(i) 15 years imprisonment (ii) 15 years concurrent with (i) (iii) 2 years imprisonment cumulative on (i) and (ii) (iv) 12 years imprisonment concurrent in (iii) and cumulative on (i) and (ii) (v) 12 years imprisonment concurrent on (iii) and (iv) (vi) 1 year imprisonment concurrent on (iii), (iv) and (v) (vii) 1 year imprisonment concurrent on (iii), (iv), (v) and (vi)

7.      On 17 November 1999, a case officer of the Respondent submitted that the offences committed by Mr Safwan in November and December 1983 rendered him liable for deportation  (T p87).   On 17 December 1999, a delegate of the Respondent decided that Mr Safwan should be deported and signed a Deportation Order on that day (T p88).    The Deportation Order was received by Mr Safwan on 13 January 2000 (T p3) and on 18 January 2000 he lodged an application for a review of this decision by the Tribunal.

8. At the hearing, Mr Safwan was represented by Joseph Klarica, of Counsel, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) including supplementary documents (“the S Documents”), together with the documents tendered by the parties. Oral evidence was given at the hearing by the Applicant, his parents Aatef and Mary Safwan, his brothers Adnan, Bassam, Hassan and Fade Safwan, and his sister-in-law Souriana Safwan.

9.      Between 1990 and 1999, whilst in custody, Mr Safwan has had the following charges recorded against him (R1):

20/6/1990     Use and possession of drugs

11/9/1994     Unauthorised property

21/9/1994     Obstruct prison officer

4/8/1995        Abusive language

22/10/1995    Not comply with routine

22/10/1995    Threatening behaviour

3/12/1995     Not comply routine

24/3/1996     Drugs in urine

10/8/1996     Possession of drug implements

24/9/1996     Threatening language

24/9/1996     Abusive language

27/12/1996    Drugs in urine

4/4/1997        Refuse urine test

23/8/1997     Possession drugs

2/2/1999        Drugs in urine

17/2/1999     Possession of drug implements

17/2/1999     Possession of unauthorised property

14/4/2001     Throwing articles

12/10/2001    Throw articles

28/11/2002    Possession and creation of prohibited goods.

Relevant Law and Policy

10. Section 200 of the Migration Act1958 (“the Act”) provides that the Minister may order the deportation of a non-citizen to whom Division 2 of the Act applies. Under s 201, the Minister may order the deportation of non-citizens who have been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than 10 years. Section 204(1) provides that any period during which the person was in prison is to be disregarded in calculating the length of time that the person has been in Australia as a permanent resident.

11. Mr Safwan arrived in Australia 26 years ago, on 1 March 1977. His first deportable offence was committed on 2 April 1982, five years and one month after arriving in Australia. His second deportable office was committed on 24 November 1983, after, according to s 204(1), approximately six years and eight months permanent residence.

12. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the Regulations”..

13. On 21 December 1998, the Minister issued a General Direction under s 499 of the Act, entitled “Australia’s Criminal Deportation Policy – Criminal Deportation under Section 200 of the Migration Act 1958” (Direction No 9). Direction No 9 states in paragraph 4:

The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community.

14.     The 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.  This guidance will be discussed below in relation to the particular facts of Mr Safwan’s case.

Evidence

The Applicant’s Evidence

15.     Mr Safwan said he was aged 16 on arrival in Australia and is the oldest child of his family.  His passport wrongly stated his year of birth as being 1958 rather 1960.  His parents were not married until early in 1960, the year he was born.  Mr Safwan said he came to Australia from Egypt some three to four weeks after the rest of his family because his father could not afford to pay for all their fares at the one time.  He has five brothers and three sisters all of whom, as well his parents, are Australian citizens.  Mr Safwan said that he did not apply for Australian citizenship when he was entitled to do so in about 1979 because he took his presence in Australia for granted. 

16.     On arrival in Australia in 1977, Mr Safwan started work almost immediately in order to help support his family.  At that time, he had limited English skills learned at school.  After working in a factory for approximately six months, he obtained a job with the State Rail Authority where he worked for about two and a half years.

17.     Mr Safwan said he fell in with the “wrong crowd”, believing he should experience all aspects of life.  He started taking drugs at the age of about 19 or 20, including heroin to which he became addicted such that he was taking it daily.  Heroin was very expensive to purchase and the offences he committed were to obtain money for the purchase of drugs.  At that time, his family were not aware of his drug addiction and he did not know where to get help.

18.     With respect to the armed robberies he committed in November and December 1983, Mr Safwan said there were others involved in the robberies with him but only he got caught.  He pleaded guilty to the robberies but not to the attempted murder.  Of those who were involved in the robberies with him, two subsequently died of drug overdoses and a third was shot.

19.     Mr Safwan said he has been in prison for approximately 20 years, including 11 years in Goulburn Correctional Centre which is one of the toughest prisons and where he is now.  While in prison, he has voluntarily undertaken a number of education programs in order to better himself including in literacy, communication, drugs and alcohol, drug prevention, peer education and a fitness leaders course.

20.     Mr Safwan said it has been very difficult to spend so long in gaol away from his family and on his own.  He has strong family ties and talks to members of his family on the phone every day.  They also visit when they can, either weekly or fortnightly.  His mother and father are sick but still travel to see him from time to time.  Apart from his immediate family, he has two uncles in Australia who also have families and in total he has approximately 150 family members in Australia.  He has no immediate family in Lebanon except an aunty and cousins.  His brothers and sisters now all have their own families, houses and businesses.

21.     Mr Safwan said he is not violent or anti-social by nature.  He became “bad” because of the crowd whom he fell in with.  He has not seen the people with whom he associated for 20 years.  He is now older and wiser and understands the meaning of responsibility.  He would like to marry and have children and run a business.  He has no time for other things.

22.     Mr Safwan said he has been through a lot of hardship in gaol.  On three occasions, he has been the victim of assaults.   He had to go “cold turkey” in prison to get off heroin.  He did not use methadone because he wanted to get off drugs completely.  He knows others who have undertaken a methadone program and who are now addicted to methadone.  While he was getting off heroin, he did, however, have counselling from drug and alcohol counsellors.  Mr Safwan agreed that drugs are relatively easy to obtain in prison if you go looking for them.  However, he does not look – he has better things to do.  He last used heroin about six or seven years ago.  Mr Safwan said there is anger, greed and selfishness in prison.  Being alone in his cell is his escape.

23.     Mr Safwan was asked about the punishment details supplied by the New South Wales Department of Corrective Services in respect of his prison service since 1990 (R1).  With regard to the entry for 28 November 2002, in respect of the possession and creation of prohibited goods, Mr Safwan said that he had made a small screwdriver from a small piece of wire from the handle of a plastic bucket.  He curved the wire, which was only a few inches long, so that it could not be used to harm anyone, and used it as a screwdriver to fix things like his toaster.  Because it was harmless, he did not consider it a prohibited good. 

24.     With regard to the entry dated 12 September 2001, in respect of throwing articles, Mr Safwan said he threw a plastic soap dish at the steel gate in the shower block when he got angry, as a means of dissipating his anger.  The entry for 14 April 2001 in respect of throwing articles, involved his having thrown a bar of soap which had been thrown to him from behind a building.  This was part of a game.  Mr Safwan could not remember the entry for 17 February 1999 in respect of “possess drug implement” nor for 17 February 1999 in respect of unauthorised property.  He acknowledged that the entry dated 2 February 1999 in respect of “drugs in urine” could be in respect of marijuana.  The entry for 23 August 1997 in respect of “possess drug” was, however, in respect of his having panadeine tablets which he had obtained from the prison clinic.  He was charged because he had more than the permitted number of tablets even though these were issued to him by the clinic.  The entry for 4 April 1997 in respect of “refuse urine” was when he was unable to perform and produce a sample of urine as required. 

25.     Mr Safwan could not recall what the entry for 27 December 1996 in respect of “drugs in urine” was about although he said the entry for 10 August 1996 in respect of “drug implements” might have been in respect of marijuana.  He acknowledged having had a “smoke of marijuana” on a couple of occasions about six to seven years ago.  He was also asked about a prison charge of threatening behaviour on 22 October 1995.  He said this was in respect of his having raised his voice at a prison officer whom he believed had picked on him

26.     In cross-examination, Mr Safwan was asked about the different prisons in which has been placed.  He said he has spent a total of about 11 years in Goulburn.  He had liked his placement at Windsor but was moved from there when the prisoner rating for inmates was downgraded from grade B to grade C:  since he was then a grade B prisoner, he was moved out of Windsor.

27.     Mr Safwan said that he has completed a small business course in prison and would like to take over the running of his father’s business.  He acknowledged that he has no practical experience with small business and that, initially, he will need support in getting started.  If he is deported, he will have no support in Lebanon and will have difficulty finding work given that he has no trade or skill and because there are few factories there.  He would also be at risk as a result of the family feud which affects both him, as the eldest son, and his father.  His family have tried to resolve the feud but the other side in the feud do not want to do so.  His uncle went to Lebanon three years ago and offered to pay money to settle the feud but this offer was rejected.  Mr Safwan said he is sorry for the offences he committed, but he believes he has paid for what he did and does not want to return to Lebanon.

28.     Mr Safwan gave further evidence at the hearing on 26 September 2003 about incidents that occurred in 1999/2000 to which reference is made in documents filed by the Respondent from the file held on Mr Safwan by the Department of Corrective Services (R2).  Mr Safwan was asked about an alleged incident on 17 June 1999 when he is said to have been under the influence of drugs – a mixture of heroin and “angel dust” – involving his assaulting two other inmates of Lithgow Correctional Centre.  Mr Safwan is alleged to have struck Leslie Kalache and physically attacked and threatened to kill Geoffrey Sutherland.

29.     Ms Safwan said this is the first he has heard of this incident.  He denied having taken heroin or “angel dust”.  He has heard of “angel dust” but does not know what it is.   He last used heroine seven years ago.  Mr Safwan denied assaulting Mr Kalache and Mr Sutherland and threatening Mr Sutherland.  He did not fight with them – he lived with them – and he has never been charged with assaulting them.

30.     Mr Safwan agreed that he had been put in segregation at that time.  Mr Safwan was referred to a Case Note by Jeff Clout, an officer at Lithgow, dated 5 July 1999, who recorded that Mr Safwan was confused and suffering “from some drug effect”.  Mr Safwan denied this:  he was not taking drugs at that time but he was upset at his being put in segregation because there was no justification for this.

31.     Mr Safwan said after the segregation, he was transferred to Goulburn.  Later, Mr Kalache and Mr Sutherland were also transferred there and were put in a cell with Mr Safwan.  This would hardly have been likely had Mr Safwan assaulted them.  Mr Safwan said that in prison, if someone doe not like you, they will often make up a story to get at you.   This may have been what happened.

32.      Mr Safwan was also asked about an incident on 4 June 2000 in which he and nine other Lebanese prisoners were alleged to have assaulted five other prisoners (R2).   Mr Safwan agreed he was present in “8 yard” at the time but said he was not involved in the fight.  He was just there at the time.

Evidence from family members

33.     The Tribunal heard evidence from four of Mr Safwan’s brothers, his sister-in-law and his parents.  The four brothers all own or co-own businesses:  two of them said they could provide Mr Safwan with employment;  two said they could provide support and accommodation.  Moreover, Mr Safwan’s father has a second hand shop which he started in 1981 which he hopes to hand over to Mr Safwan if he is permitted to stay in Australia.  Both parents said they would provide a home for and support their son on his release.

34.     The evidence of Mr Safwan’s family is that Mr Safwan has changed:  he is older and more mature, calmer, more religious and treats his family with respect;  he has accepted that he has a debt to repay to the community for what he did.  As the eldest son, the other brothers look to him for advice.  A number of them visit him in prison and speak to him on the phone regularly.  While his father and mother only visit him in prison every three or four months, they speak to him on the phone almost every day.  His mother suffers from a “heart condition” and both parents find the trip to Goulburn difficult.

35.     The family fled Lebanon in 1977 as a result of the civil war and a family feud.  Mr Adnan Safwan, the Applicant’s younger brother, said their father was a wealthy businessman and had a cellar in which food was stored.  Other family members stole the food stores and someone was shot in the process.  Mr Safwan remembered hiding with other members of the family in underground cellars because of the feud before they finally escaped from Lebanon.  A number of the brothers spoke about attempts by their father and uncles to resolve the feud with the other side of the family, including by paying money, but to no avail.  As a result, their father has been unable to return to Lebanon because of the threat to his life from the other side of the family who want revenge.

36.     Mr Aatef Safwan, the Applicant’s father, said when he went on a haaj to Mecca in 1991, he stopped over in a Beirut airport hotel for about 17 hours and during that time phoned an important member of the family to try and resolve the feud but to no avail.  Most recently, about two months ago, Mr Safwan phoned a family friend and asked him to try and resolve the dispute, but the friend’s attempt was unsuccessful.  Mr Safwan said his and the Applicant’s life, being the eldest son, would be in danger if they returned to Lebanon.

37.     The Applicant’s brothers spoke of all their immediate family being in Australia and how they have about 150 family members in Australia and very few in Lebanon.  While the brothers have visited Lebanon, two brothers, Bassam Safwan and Hassan Safwan, spoke of the precautions they had taken because of the threat to their part of the family arising from the family feud.  The four brothers who gave evidence and Souriana Safwan, the Applicant’s sister-in-law, all said they look up to the Applicant as their eldest sibling and seek his advice on family matters and other problems. 

38.     In an Affidavit dated 7 May 2003 (A2 document 1), the Applicant’s mother, Mary Safwan, said the possibility of the Applicant being deported “has been really stressful and my health has suffered greatly”..  In a Statutory Declaration dated 7 November 2001 (A2 document 5), the Applicant’s mother and father referred to the emotional suffering they have endured for the past 20 years and their need to have their eldest son with them.

Report of Judy Saba

39.     Ms Saba is a Senior Cross-cultural Psychologist with the Maronite Catholic Diocese of Australia.  In her report dated 20 August 2003 (A1) based on a telephone interview with the Applicant, and on interviews with his parents and brother-in-law, Ms Saba said the most extreme strategy for retribution in such a family feud “is to take the eldest male”:  “the clear and real cultural notion of retribution within his family clan places him in real danger”.    Thus, Mr Safwan would be targetted.

40.     Ms Saba described the trauma experienced by Mr Safwan as a 16 year old leaving Lebanon and arriving in Australia.  She stated:  “The use of drugs was clearly a tangible way of ‘loosing himself’”.   She recorded Mr Safwan’s words:

I look back at what I did and I am ashamed and sorry … I am not that person … I did those things but I am not that person.

41.      Mr Safwan expressed his “genuine remorse and sadness at the impact his behaviours had on the victims, and a commitment to rehabilitation on his release.  Ms Saba said these insights, and Mr Safwan’s family support, indicate strongly that Mr Safwan will not reoffend.  She recommended that Mr Safwan and his family should engage in a structured rehabilitation program on his release.

42.      Ms Saba also described the profound impact of Mr Safwan’s past behaviour on his family.  In the Lebanese community, “the family unit is paramount” and the behaviour of an individual is shared by the whole family.  She referred to Mr Safwan’s mother constantly describing herself as “emotionally imprisoned”, and to the whole family serving the sentence and wanting the opportunity to assist in his rehabilitation.

Application of the Law and Findings

43. As stated above, under s 201 of the Act, the Minister may order the deportation of a non-citizen who has been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than 10 years.

44. In making the deportation order dated 17 December 1999 (T p7), the Respondent relied on Mr Safwan’s conviction on 30 April 1985 of a series of armed robberies, for which he was sentenced to a minimum of 29 years. Evidence of that conviction appears in the T documents (T p137). The Tribunal agrees with the Respondent that at the time of the commission of the offence on 24 November 1983, Mr Safwan’s permanent residence in Australia, excluding, pursuant to s 204(1), periods during which he was confined in prison, amounted to approximately six years and eight months. The Tribunal therefore concludes that Mr Safwan is liable to deportation under s 201 of the Act.

45.      At issue is whether to exercise the discretion to deport Mr Safwan.  Like other decision-makers, the Tribunal is guided by Direction No 9 in exercising this discretion.  The two primary considerations to be considered in making a decision are set out in paragraph 6:

(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.

The latter is not relevant in Mr Safwan’s case.

46.      There are two aspects to community expectations noted in paragraph 8 of the Direction:

(a)       the expectation that the community will be protected and not put at risk; and

(b)the expectation that non-citizens who currently commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.

47.     Paragraph 10 identifies three factors as 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;

(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

48.     In addition to the primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases.  Paragraph 21 states that “it is appropriate that these matters be taken into account but given less weight than the primary considerations”.  These matters include:

(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and

(b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family (other than children whose best interests are a primary consideration).

49.     Turning first to the protection of the Australian community, there is no question that Mr Safwan committed a series of very serious offences.  In sentencing Mr Safwan, Justice Maxwell recognised that the offences committed between late November and late December 1983, after Mr Safwan had escaped from Silverwater prison, were to pay for his addiction to heroin which Mr Safwan said was costing $800 per day (A2 document 67 p10). 

50.     As to the risk of recidivism, the Tribunal notes that the offences committed by Mr Safwan in late 1983 came after he had been warned on 28 September 1982 that any further conviction would lead to the question of his deportation being reconsidered.  Mr Safwan has not been convicted of any offences since late 1983.  However, he has, of course, been in prison for the whole of that period.

51.     Mr Safwan’s prison record shows various charges about which the Tribunal has some documentary evidence from the New South Wales Department of Corrective Services (R2) and about which Mr Safwan gave evidence in cross-examination.  The Tribunal’s overall impression is that a number of the charges are of a relatively trivial nature:  for example, the incidents involving throwing articles.  The Tribunal also accepts Mr Safwan’s explanation concerning the possession and creation of prohibited goods:  that this was a small screwdriver he made out of a wire bucket handle for fixing his toaster.

52.     Mr Safwan was unable to explain the two charges dated 17 February 1999 – possession of drug implements and possession of unauthorised property – but admitted that the “drugs in urine” charge dated 2 February 1999 could be in respect of marijuana.  However, the 23 August 1997 possession of drugs charge was in respect of his having more panadeine tablets than the permitted number – even those these had been given to him by the prison clinic.

53.     There are three drug related charges in 1996:  drugs in urine, possession of drug implements and drugs in urine.  Mr Safwan said in evidence that he got off heroin going “cold turkey”, but admitted that he last used heroin six or seven years ago.  The other charges in 1994 and 1995 appear to be discipline-related, but the charge dated 20 June 1990 is “use and possession of drugs”.  The Tribunal notes the notation against this charge:  “major charge sent to VJ for hearing” (R2).

54.     The Department of Corrective Services file papers (R2) refer to an assault in “8 yard” at Goulburn on 4 June 2000.  Mr Safwan was one of 10 Lebanese inmates present when five other inmates were involved in an incident.  While acknowledging that he was present at the time, Mr Safwan said he took no part in the assault.

55.     The file papers also refer to an allegation that on 17 June 1999, Mr Safwan was possibly under the influence of heroin or “angel dust”, became aggressive and threatened two other prisoners (A4).  Mr Safwan vehemently denied this and said he did not know what “angel dust” was.  The only supporting evidence is a hearsay report by a Senior Correctional Officer, Terrence Ross (R3).  Mr Ross refers to a conversation with an inmate concerning drugs which had been brought into the Lithgow Correctional Centre through visits over the weekend:

Inmate Kalache said you have hit the nail on the head.  Stuff did come in on the weekend.

56.     In the Tribunal’s view, there is insufficient evidence to make any finding about what occurred although the Tribunal notes that, on 17 September 1996 (R1), Mr Safwan was transferred from Lithgow to Goulburn where, according to his evidence, he subsequently shared a cell with the two prisoners he is alleged to have assaulted.

57.     After the alleged assault and before he was transferred to Goulburn, Mr Safwan was placed in segregation for several months.  A Case Note by Jeff Clout, 1^st Class Correctional Officer at Lithgow dated 5 July 1999 (R2), records that when Mr Safwan arrived in “segro”, “he was confused and suffering from some drug effect”..  Mr Safwan denied this and said he was not taking drugs at the time but was upset at his being put in segregation because there was no justification for this.

58.     The Tribunal notes a handwritten comment by the Governor of Lithgow Correctional Centre dated 4 June 1999 (T p215):

Inmate suspected of and allegedly involved in drug trade inside correctional centre.  Moved Bathurst to Lithgow because of these suspicions and allegations.

59.     Turning to evidence of rehabilitation and good conduct, the Department of Corrective Services file (R2) refers to Mr Safwan participating in a Health and Fitness course in January 1998 at Lithgow, being “extremely conscientious in his endeavours” and making excellent progress.  Earlier reports refer to his consistency and application and exemplary conduct (Bathurst Correctional Centre Report 3 August 1994 – A2 document 28);  a report dated 1 June 1992 refers to his being “instrumental in educating younger Lebanese inmates in Arabic and in studying the Koran” (A2 document 40).

60.     With regard to the documentary evidence tendered on behalf of Mr Safwan, there is evidence of his completing the HIV Peer Education Program in April 1993 (A2 document 15), and to his successfully completing the Special Care Unit program on 16 February 1994, with a commendation for having worked well throughout his time in the program (A2 document 16).  An earlier report dated 28 May 1992 by a Senior Prison Officer at Lithgow, speaks of a vast improvement in Mr Safwan’s attitude since when he was first imprisoned and states that “there is little concern of SAFWAN going back on drugs when he is released” (A2 document 18).  There are also references to Mr Safwan having rediscovered his Muslim faith (6 April 1993 – A2 document 19), and to his being a responsible worker (A2 document 21).

61.     The Tribunal had regard to the Immigration Report prepared by Anthea Mitchell, a Parole Officer at Lithgow dated 4 May 1999 (T p205).  With regard to Mr Safwan’s Custodial Performance, Ms Mitchell stated:

Inmate Safwan was taken into custody on 30 April 1985.  Since that time he has been housed in several different gaols.  His classification has oscillated over time between a high and a low rating.  Although he has twice been classified lower, on each occasion an incident occurred, necessitating him being returned to the higher one.

The inmate informs that he has always worked whilst in custody at such jobs as painting, maintenance and cooking.  He has attended educational programs and has done Reading & Writing 1 & 2, Access to Vocational Studies, Computing in Engineering, Senior First Aid, Permaculture Consultant and Occupational Health and Safety.

He has addressed his offending behaviour by attending Drug and Alcohol courses, having completed – Drug Education Program, HIV Health Promotion, Relapse Prevention, Conflict Resolution, Anger Management, Peer Educator Program, Assertiveness Training, Oral Communication 1 & 2, and Health and Fitness.  He has participated in the Special Care Unit program in Long Bay in 1994 for four months, and whilst at Bathurst he states he attended one to one counselling for over a year.  He also states he was counselled by the Psychologist whilst at Bathurst.

The inmate has 19 misconducts to his name since June 1990.  Eight of those charges were drug related, the remainder were behavioural.

62.     In her Assessment, Ms Mitchell stated that Mr Safwan:

impresses as a polite individual who has addressed his offending behaviour by attending various programs and completing many courses.

63.     The Tribunal notes that Mr Safwan’s prisoner classification is A2.  He was classified as B from 1993 (A2 document 64) and a recommendation was made that he be reclassified as C1 in 1995 (A2 document 52).  This did not however eventuate.  The Department of Corrective Services file papers reveal that on 1 March 2000, the Serious Offenders Review Council (“SORC”) recommended that his classification remain A2 “due to unsatisfactory reports”.  On 2 May 2001, SORC reconsidered Mr Safwan’s classification to B but decided that he should be further assessed in six months.  On 5 October 2001, he declined to be interviewed by the Assessment Committee and SORC decided his classification should remain A2.  On 7 May 2002, SORC decided to maintain his A2 classification.  SORC records the Assessment Committee Recommendation as follows:

Stay as in (Goulburn).  Inmate does not work as there is no work available for Lebanese inmates.   Complies with routine grudgingly.  No contact with A&OD.  Contact with Education but is not participating in any formal program or study. No recent contact with Psychologist or Welfare.  Minimal contact with Chaplain.  Inmate refused to see Assessment Committee.

On 22 October 2002, SORC again decided to maintain Mr Safwan’s A2 classification, noting that he declined to be interviewed (R2).

64.     Drawing on the above discussion of relevant evidence, the Tribunal accepts that Mr Safwan no longer has a drug addiction.  His oral evidence was that he has not taken heroin for six or seven years, although he acknowledged that a “drugs in urine” charge in February 1999 probably related to marijuana.  The evidence suggests that it was Mr Safwan’s drug addiction which was behind his committing the series of armed robberies in late 1983, as the sentencing Judge recognised (A2 document 67).

65.     Mr Safwan’s prison record and the Department of Corrective Services file papers discussed above suggest that during 22 years in prison, he has matured, become more religious and at least until about 1999, seems to have successfully undertaken various educational programs and to have been regarded as a conscientious and committed worker who was setting a good example to younger inmates.   In 1995, consideration was given to his imprisonment classification being changed to C1.  This did not eventuate.

66.     Since June 1999, when allegations were made about his conduct at Lithgow Correctional Centre and he was subsequently transferred to Goulburn Correctional Centre, the evidence suggests Mr Safwan has take a more negative attitude to his situation, including declining to be twice interviewed by the SORC Assessment Committee in relation to consideration being given to his being reclassified from A2 to B.  The Tribunal has no illusions about the harsh regime in a prison such as Goulburn and notes that there is no work for Lebanese prisoners there.  The opportunities for Mr Safwan in Goulburn may, therefore, have been more limited than had he been serving his sentence in another prison.

67.     Aside from the Departmental material, the members of Mr Safwan’s family who gave evidence all spoke of his having matured and being calmer, more religious and treating his family with respect.  His siblings look up to Mr Safwan as their oldest brother and seek his advice on family matters and other problems.  Mr Safwan said he is older, wiser and more responsible.  He expressed remorse for his conduct but said he has paid for what he did and does not want to return to Lebanon.

68.     The Tribunal also had regard to the report of psychologist Judy Saba dated 20 August 2003 (A1).  She stated that Mr Safwan “expressed a clear understanding of the impact his behaviours have had on others”.  She said he displayed:

A clear maturity, a genuine remorse and sadness at the impact his behaviours had on the victims, and a keen and justified commitment to continuing his rehabilitation post release.  In Gehad’s words “I look back at what I did and I am ashamed and sorry … I am not that person … I did those things, but I am not that person”.

Ms Saba said there is no measurable indication that Mr Safwan is likely to reoffend.  Rather there are strong indications that he is not likely to do so.

69.     The Tribunal concludes from the above that Mr Safwan underwent extensive rehabilitation until about 1999..  However, his prison record since that time suggests a negative attitude, although his family have continued to plan for assisting in his further rehabilitation on his release from prison into the Australian community.   The Tribunal accepts that Mr Safwan is part of a close-knit family who are very important to him, as he is to them, and that they will provide him with support on his release.

70.     The Tribunal considers that the risk of Mr Safwan’s reoffending is low, given his evidence and that of his family and his record over recent years.  His record is not without allegations of misconduct, but the Tribunal accepts that to survive in the prison system for over 20 years makes it very improbable that a person would have a spotless record.

71.     With regard to deterrence, while the Tribunal accepts that this is a relevant factor and that deportation may discourage others from criminal conduct, in the Tribunal’s view the circumstances of Mr Safwan’s offences having been driven by heroin addiction and the very lengthy prison sentence he has served as a result, are sufficient deterrence.

72.     When considering the expectations of the Australian community, paragraph 15 of Direction No 9 sets out “the Government’s view that the Australian community trusts non-citizen residents to obey Australian laws” and that it may be appropriate to deport a person who betrays this trust.  Mr Safwan has a substantial criminal record.  However, in the Tribunal’s view, the community would take into account the long prison term that he has already served and take into account his personal situation.  In particular, he left Lebanon at the age of 16 and has been in Australia since then.  All his immediate family are here and the Tribunal has no doubt that they will provide extensive support on his release.  He has no immediate family to support him in Lebanon and could be at risk because of the unresolved family feud discussed above.  There is also the compassionate plea of his elderly parents and the cultural role attributed to the elder son by family members.  The Tribunal concludes that the Australian community would give Mr Safwan another chance and not expect that he would be deported on completion of his prison sentence. 

73.     The second primary consideration under Direction No 9, the Best Interests of the Child, is not relevant to this matter.

74.     Turning to the other considerations to which decision-makers are directed by paragraph 21 of Direction No 9, the Tribunal notes that these should be given less weight than the primary considerations but may be taken into consideration where relevant and if appropriate.  These matters include the degree of hardship that may reasonably be expected to be suffered by the Applicant and his family as a consequence of his deportation.

75.     The Tribunal finds that there would be significant hardship to Mr Safwan if he is deported.  As noted, he left Lebanon at the age of 16 and has been in Australia since, albeit in prison during the majority of that time.  All his immediate family are in Sydney and all the evidence indicates that they are a close family who would be devastated if Mr Safwan is deported, especially his elderly parents who suffer various medical problems.  As the eldest son, Mr Safwan has a special place in the family and his siblings turn to him for advice.

76.     Being the eldest son in the family also poses another problem for Mr Safwan if he is deported because of the unresolved family feud described above.  Retribution sought by the other side of the family arising out of a shooting in the mid 1970s, means that Mr Safwan, as the eldest son, would be at risk if he returned to Lebanon.

77.     If he is permitted to stay in Australia, Mr Safwan’s family in Sydney will support him with accommodation and employment:  his father is keen that he should take over the running of his second hand shop.  Towards this end, Mr Safwan has undertaken a small business course whilst in prison although he acknowledges he does not yet have any practical experience of running a small business.  By contrast, there is no support in place for Mr Safwan in Lebanon and, in particular, no immediate possibility of employment for him there.

78. In conclusion, the Tribunal sets aside the decision under review, and substitutes a decision not to exercise the power in s 200 of the Act to deport Mr Safwan. Whilst the Tribunal has some concerns over evidence of Mr Safwan’s negative attitude towards rehabilitation during his last few years in prison, it considers the risk of his reoffending is low given evidence of the supportive family environment into which he will be released. The Tribunal considers the deterrent effect of a long prison sentence to be sufficient in this case and that the Australian community would be prepared to give Mr Safwan another chance and would not expect that he be deported on completion of his sentence. The other relevant considerations – potential hardship to Mr Safwan and his family – also favour his not being deported.

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  10 July 2003, 26 September 2003, and 2 December 2003

Date of Decision  18 December 2003
Representative for the Applicant               Mr J Klarica, Barrister

Representative for the Respondent          Mr M Allatt, Solicitor, Australian Government Solicitor’s office