Schuster and Minister for Immigration and Multicultural Affairs - [2001] AATA 786

DECISION AND REASONS FOR DECISION [2001] AATA 786

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/501

GENERAL ADMINISTRATIVE DIVISION       )
           Re      HANS JURGEN SCHUSTER
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date14 September 2001
PlacePerth

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the applicant be deported only after he has been afforded a reasonable opportunity to file an appropriate application or applications in the High Court of Australia and in the event that he does so, only after the High Court has finally ruled against him on any such application or applications.
  ..............................................
  Deputy President
CATCHWORDS
Immigration – deportation – abhorrent crime – whether to deport before all avenues of appeal against conviction exhausted – possibility of appeal to the High Court of Australia – decision to deport set aside.
Migration Act 1958 – ss.200 and 499
Luu v Minister for Immigration and Multicultural Affairs [1998] 1021 FCA

REASONS FOR DECISION

14 September 2001 Mr S P Estcourt QC., (Deputy President)

This is an application to review the decision of a delegate of the respondent of 26 November 1998 ordering the deportation of the applicant pursuant to s.200 of the Migration Act 1958 ("the Act").
On the hearing of this application Mr Schuster represented himself and the Minister was represented by Ms Ria Vavakis.
In evidence before the Tribunal were 3 sets of documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), and undated statement signed by Mr Schuster (Exhibit 2) and a report of a clinical psychologist, Mr Roger Summers, dated 22 June 2001 (Exhibit 3).
Additionally by way of evidence the statement by Mr Schuster that prison officers at Albany Regional Prison would, if called, give evidence to the following effect, was not challenged by the Minister;
(a)      that whilst in prison Mr Schuster has been well behaved;
(b)      that his recent conduct has been good conduct;
(c)       that he keeps to himself in prison;
(d)      that he has never had any problems in Albany Regional Prison;
(e)      that in prison he has demonstrated a strong sense of self-worth;

(f)that whilst in prison he obtained employment through using initiative and
demonstrating resourcefulness.

On the basis of the material before it, the Tribunal finds the following facts:

(a)The applicant was born at Luneberg, Germany on 25 January 1941.   He had one brother and one sister and his parents were divorced in 1952 when he was 11 years old.
(b)The applicant's father obtained custody of him.   The applicant's sister had already left home at the time of the divorce and was living in another city in Germany.   The applicant's brother migrated to Australia and became an Australian citizen in 1956.   The applicant's mother migrated to Australia in 1955 and became an Australian citizen in 1969.
(c)The applicant has not seen his sister since 1952 and knows nothing of her status or of her whereabouts.
(d)Because of his father's bitterness following the breakdown of his marriage to the applicant's mother, all communications from her or from the applicant's brother were returned and so from the age of 11 the applicant had lost contact with them.
(e)In 1979 the applicant's father died and in 1983 during the course of the administration of his estate, the applicant became aware for the first time of the whereabouts in Australia of his mother and brother.
(f)On 2 April 1983 the applicant came to Australia with his fiance and was re-united with his mother and brother during a 2 month visit.
(g)On 7 February 1984 the applicant returned to Australia for almost 6 months whilst he and his fiance had a good look at the country with a view to migrating here.   Whilst here he was advised that he would be entitled to permanent resident status on "a family reunion basis" and that if he married his fiance in Germany she would also be entitled to permanent residency upon her return with the applicant.
(h)The applicant returned to Australia with his wife on 19 December 1984, however he was told by immigration officials that his marriage had compromised his entitlement to permanent residence on a family reunion basis.

The applicant pursued his application for permanent residence on the basis of hardship and on compassionate grounds and ultimately on 6 July 1992 he was granted permanent residency.

(j)In 1988 the applicant was divorced from his wife and he has not contact with her since.
(k)On 6 December 1995 the applicant was sentenced in the District Court of Western Australia to an effective 9 years imprisonment for his involvement in a conspiracy to manufacture a prohibited drug and related offences.
(l)The applicant appealed to the Court of Criminal Appeal, against both conviction and sentence, represented himself, was partially successful and in the result his effective sentence was reduced to 7½ years imprisonment with eligibility for parole.
(m)The applicant was convicted of crimes which the Australian government and the Australian community would regard as abhorrent.   The applicant, a qualified industrial chemist, was convicted for his involvement in a plan, very near completion, to manufacture 4 kilograms of methylamphetamine, commonly known as "speed", with an alleged street value of $3,000,000.
(n)In sentencing the applicant District Court Judge Jackson said:
"I would hope that if the legal processes enable you to be deported you will be because a person with the knowledge to produce this drug in this volume who is prepared to pervert himself in that way and to cause the harm that the drug does cause is a danger to our society."
(o)On appeal the Court of Criminal Appeal observed:
"Whether or not the amount of methylamphetamine produced would have been as great as claimed on behalf of the Crown is a moot point.   However, bearing in mind that the distribution of the drug in the community has resulted in and continues to result in horrific and deleterious consequences for both its consumers and the community generally …Jackson J was entitled to regard the appellant, as he did, as a danger to society."
(p)On 4 December 1998 the applicant was entitled to be released on parole by order of the Parole Board dated 23 November 1998, but he remained in immigration custody at Albany Regional Prison consequent upon the making of the deportation order of 26 November 1998.
(q)On 18 December 1998 the Court of Criminal Appeal set aside the convictions and ordered a new trial in the case of William James Nobes, a co-accused of the applicant, as a result of the Director of Public Prosecutions advising the Court that he was unaware at the time of the trial of Nobes that the National Crime Authority had supplied $20,000 to one of the admitted conspirators, in early March 1994.
(r)The Court of Criminal Appeal's decision was published in the press on 16 January 1998, the day after the Court's detailed reasons were published in writing.   A report in the West Australian newspaper was seen by the applicant which read in part:
"Quashing Mr Nobes' conviction, Justice Henry Wallwork said it was important to preserve the integrity of the justice system and to ensure that trials were conducted according to law.   `To not set aside Mr Nobes' conviction in this case would be to encourage a lax approach to the enforcement of the law'".

(s) On 21 February 1998 the applicant again applied to the Court of Criminal Appeal to review his conviction. His submission in support, reads, in part:

"My conviction was mainly based on the argument by the prosecution that I went back to Mildura and allegedly picked up some chemicals or the Omnius Fester, and therefore it was made to believe that I had prior knowledge of the conspiracy.
The facts as now presented in the Nobes Appeal clearly proves that the NCA approved the payment of $20,000 to Franco D La Rosa. I never met La Rosa until we met at the appeal of Nobes in the Supreme Court. The only two people that I had ongoing contact with, since I came to WA, were Mr P Finch (found not guilty) and W Nobes (conviction quashed).
As the Appeal Judges stated (W Nobes appeal) that the payment of $20,000 was not disclosed to the DPP Mr McKechnie, the Trial Judge and Jury, nor to the Appeal Court Judges (appeal H Schuster) it is important to the Justice System to ensure that trials are conducted according to the Law.
Finally some of the Crown witnesses told everything but the truth at my trial and with the new evidence it will be easy for me to prove that."

(t)The applicant was subsequently informed that because he had previously appealed to the Court of Criminal Appeal he needed "A Petition of Mercy Referral of the CCA by the Attorney-General."
(u)The applicant made such an application to the Attorney-General and after a wait of 14 months it was refused with no reasons given.

That subsequent to the Attorney-General's Refusal only 2 to 3 months ago the applicant wrote to the Law Faculty of the University of Western Australia and as a result was, only a few weeks ago, provided with information and advice as to how to appeal to the High Court of Australia.

(w)Since his incarceration the applicant has maintained some written communication with his mother, who is now 91 years of age and lives in Cowra in New South Wales, but he has not told her of his conviction and sentence and she simply believes he lives in Albany from where he sends flowers at Christmas and cards on special occasions.

The applicant remains a German citizen and as such is entitled to a pension from the German government of about $1,800.00 Australian per month. He has not as yet applied for that pension.

(y)The uncontradicted psychological evidence is that empirically, upon assessment by psychological testing, not completely of precise application to the applicant or his offence, he has a relatively low risk of re-offending.
(z)The applicant has made a deliberate choice to remain in prison, with all that entails, in order to pursue his quest to "clear his name", as against enjoying his freedom and his pension anywhere else in the world but Australia, where his ties are at best, formal only.

Pursuant s.201 of the Act, a person is liable to deportation if that person commits an offence for which he was sentenced to imprisonment for a period of not less than 1 year, within the first 10 years of commencing residence in Australia as a permanent resident.
The applicant is clearly liable to be deported pursuant to that section as he was convicted in 1995 of offences committed between 1992 and 1994 and his permanent residency did not commence until 6 July 1992.
On 21 December 1998 the Minister issued a General Direction under s.499 of the Act entitled "General Direction – Criminal Deportation No 9 ("the Direction").
The Direction provides that there are two primary considerations, which are applicable to a consideration of the question of whether or not a permanent resident should be deported. They 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.
The second primary consideration has no application in this case.
In addition there are two relevant secondary considerations which are applicable. They are:
(a)The degree of hardship which may reasonably be expected to be suffered by the potential deportee.
(b)The degree of hardship to Australian citizens or permanent residents that could reasonably be expected to flow from deportation.
Paragraph 8 of the Direction elaborates on the meaning of community expectations in Australia as follows:
"There are two aspects to community expectation:
(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."
In assessing the level of risk to the community and the need for its protection the Direction provides by paragraph 10 that the following factors are relevant:
(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 (i.e. general deterrence).
Finally, paragraph 15 of the Direction states the government's view that there are circumstances where deportation is appropriate, simply because the nature of the offence is such that the Australian community would expect the person to be deported. If the offence is of that nature, it would be appropriate to deport the offender even if there is no serious likelihood of threat to the community.
The applicant's crime was abhorrent. The Tribunal has already found that as a fact. In addition paragraph 11(a) of the Direction provides:-
"Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effect of illicit drugs on the health and welfare of Australia's young people.
The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs as extremely serious offenders. It is important both as a deterrent to other criminals and to protect the Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
Offences inviting heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community."
The Tribunal assesses the applicant's risk of recidivism, on the basis of the accepted psychological evidence, with its acknowledged shortcomings, as low.
The aspect of general deterrence is not a major consideration in this case given that other persons prepared to commit such abhorrent crimes for financial gain are probably not likely to regard deportation as any greater deterrent than the long prison sentences which apply.
Turning to the first of the secondary considerations the Tribunal does not believe that the mere fact of deportation is likely to cause the applicant any serious degree of hardship. He is a German citizen, he is entitled to a pension, and even before his incarceration his level of family contact was not high and his geographical proximity to his mother and brother not close.
As to the second of the secondary considerations, again, the Tribunal is of the view that the mere fact of deportation is not likely to cause any significant hardship to the applicant's brother and mother. His contact with them before he was imprisoned was not extensive and for the last 6 years it has, without their knowledge of his conviction and sentence, been formal contact only from a place as far away as Albany. What may well cause the applicant's mother suffering is the knowledge of his conviction and sentence and she will not be made aware of that, I infer, even if the applicant is deported.
The assessment of the competing considerations affecting the exercise of the discretion to deport the applicant does not however end there. Whilst the seriousness and nature of the crime and the expectations that the community will be protected and not put at risk clearly call for the applicant's deportation and while there are no aspects of hardship to Australian citizens which the Tribunal finds relevant, the aspect of the primary consideration of the expectation that non-citizens convicted of abhorrent crimes will be removed from Australia, and the secondary consideration of hardship to the applicant both compel a consideration of whether it is fair or reasonable to deport him when he is involved in a process of seeking to have the courts set his conviction aside.
The Tribunal was informed by Ms Vavakis that Mr. Nobes, who incidentally had served his entire sentence before his conviction was quashed, has been retried and convicted.
It is however, no more appropriate for the Tribunal to evaluate the applicant's prospects of success on retrial than it would be to go behind the fact of his convictions and sentence (see Luu v Minister for Immigration and Multicultural Affairs [1998] 1021 FCA).
The Tribunal need only be satisfied that the applicant is serious about his desire to take steps to clear his name by court application, and that such an application would not be frivolous or vexatious.
The Tribunal is satisfied that the applicant is serious. He has spent over 1½ years in prison, when he could have been at liberty, in pursuit of his desire to have his conviction set aside. He is clearly an intelligent and articulate man, and the Tribunal infers that he well understands that mere lip service to the idea of pursuing further appeals will neither assist him before the courts or before this Tribunal.
The Tribunal is also satisfied that it cannot be said that an application to the High Court to extend time for leave to appeal against the decision of the Court of Criminal Appeal on the basis of new evidence or to review the Attorney-General's refusal of access to the Western Australian Court of Criminal Appeal could not be said to be frivolous and vexatious.
The Tribunal is of the view that the hardship to the applicant in being removed from ready access to the Australian justice system and the affront to the expectation of the Australian community involved in deporting someone convicted of an abhorrent crime before he or she has exhausted all proper avenues of appeal, require the greatest weight to be afforded in this case.
These considerations also outweigh the notion of deportation being justified simply because of the nature of the offence, although, absent this question of being allowed access to the highest appellate court in Australia, the nature of the applicant's conviction demands immediate deportation in this case.
It follows that in the Tribunal's view the Minister should not deport Mr Schuster until after he has had a reasonable opportunity to lodge an appropriate application to the High Court of Australia and until after the High Court has finally ruled on such application.
The order of the Tribunal is that the decision under review is set side and that the matter be remitted to the respondent with a direction that the applicant be deported only after he has been afforded a reasonable opportunity to file an appropriate application or applications in the High Court of Australia and in the event that he does so, only after the High Court has finally ruled against him on any such application or applications.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  10 September 2001
Date of Decision  14 September 2001
Counsel for the Applicant        Applicant represented himself
Solicitor for the Applicant
Counsel for the Respondent    Ms Ria Vavakis
Solicitor for the Respondent    Aust. Government Solicitor