Selby and Minister for Immigration and Multicultural Affairs - [2000] AATA 735

DECISION AND REASONS FOR DECISION [2000] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/203

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LESLIE SELBY
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date23 August 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – abhorrence of crime – risk of recidivism – best interests of children – hardship.
Migration Act 1958 s 200

REASONS FOR DECISION

23 August 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision made on 15 December 1999 by a Delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant under Section 200 of the Migration Act 1958.
The matter was heard by me on 1 August 2000. The applicant, Leslie Selby, represented himself and Mr D Kirchhubel of the Australian Government Solicitor's Office represented the respondent Minister.
The applicant gave oral evidence at the hearing. The following documents were placed into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Letter from the applicant's wife (received in confidence)
Exhibit 3 Corrective Services File documents
Exhibit 4 Assessment Advice Report dated 18.2.00
Exhibit 5 Report of Dr Ian Atkinson dated 30.10.99
Exhibit 6 Cognitive Skills Program Exit Report dated 19.4.00
Exhibit 7 Police Briefs

Mr Selby is 49 years of age and a New Zealand citizen. He arrived in Australia in December 1994. In April 1999 he was convicted of indecent treatment of a child under 16 years, procuring an act of gross indecency and maintaining a sexual relationship with a child under 16 years with circumstances of aggravation. He was sentenced to four years imprisonment on those counts. It is these convictions which bring Mr Selby within the scope of Section 200 of the Migration Act.
The applicable Ministerial Direction is Direction 9 – General Direction – Criminal Deportation. The Direction states that the primary considerations are the expectations of the Australian community and, where an applicant is involved in a parental relationship with a child, the best interests of that child.
There are two aspects to community expectations. Firstly, the expectation that the community will be protected and not put at risk and, secondly, the expectation that non-citizens who commit and are convicted of crimes which are abhorrent to the Australian community will be removed from Australia.
Issues to be taken into account when evaluating the protection of the Australian community include the seriousness and nature of the offences committed by the applicant, the risk of recidivism and the deterrent effect of deportation on other non-citizens.
The convictions in 1999 are the only offences on Mr Selby's criminal history. On their face they clearly fall within the category of very serious crimes in the Ministerial Direction. The details of the offences are contained in the sentencing remarks of Judge Robin QC and do not need to be repeated here. In summary, these offences amounted to the sexual exploitation of the applicant's step-daughter in return for money and support she should have had the right to expect from him. Such a crime can only be described as truly abhorrent according to community standards. The applicant did plead guilty, but says he has no recollection of these events as he suffers from frequent depression and blackouts.
Dr Atkinson, a Psychiatrist who reviewed the applicant, accepted that Mr Selby had experienced fugues on at least two occasions, but found it hard to believe the explanation of the offences. Given the details of the offences, it is a view shared by the Tribunal. Dr Atkinson reached the conclusion that the applicant suffers from a significant personality disorder and that it was uncertain as to whether he will suffer from depression again when faced with the stresses of everyday life.
The applicant's Exit Report from the Cognitive Skills Program stated that there had been some improvement in the applicant's insight, but that he had been unable to effectively address his offending behaviour due to his alleged lack of memory. Given these factors, the risk of recidivism must be assessed as at least medium. In relation to the general deterrence deportation has on other non-citizens, this is not a case in which it would have any real significance.
The Australian community does expect to be protected from abhorrent crimes and that non-citizens who are convicted of such will be removed from Australia. The Australian community regards the sexual abuse and exploitation of children as truly abhorrent and would expect that the applicant be deported. As such, the first primary consideration is weighed against the applicant.
Mr Selby has three daughters under the age of ten years. The youngest is an Australian citizen and the elder two are permanent residents. The applicant's children had been writing to him in prison, but their mother has discontinued all contact with him by the children and has made it clear that she will oppose any future contact. Mr Selby maintains that he loves his children and if permitted to remain in Australia he will endeavour to see them again. The Ministerial Direction states that the starting point in this consideration is that the best interests of the children will be served if they remain with both parents. However, given that the crimes Mr Selby is convicted of involve children, one would need cogent evidence to say with any certainty that it is in the best interests of the children that they remain with their father. No evidence was presented as to how the children currently feel about their father, or what psychological effect deportation will have on them. It is clear that if the applicant is deported the children will not be going with him and he may never see them again. Further, even if the applicant remains in Australia, it is unknown whether he would be granted access rights given the nature of his convictions. There is too much uncertainty surrounding this issue for an authoritative determination to be made as to what is in the best interests of the children. As such, this consideration does not assist or hinder the applicant's appeal.
On the whole, the primary considerations are balanced in favour of the applicant being deported.
The secondary consideration includes the degree of hardship suffered by the applicant and by Australian citizens or permanent residents.
If Mr Selby is allowed to remain in Australia, he has a friend who has offered him accommodation and employment. If he is deported he says he knows no-one in New Zealand who will assist him. He has been estranged from his family since he was 16 years old and has no contact with his first ex-wife. Mr Selby also suffers from a disease very similar to Chrohn's disease. It is quite debilitating, requiring constant medication and frequent hospitalisation.
Managing this disease in a country where he has no accommodation, no employment and no support network, will result in severe hardship to the applicant. However, given prevailing community standards, such hardship does not outweigh the need to protect the Australian community and the abhorrence of the crime. If New Zealand were an under-developed country without a welfare system, or if Mr Selby had only spent his early childhood in that country, this consideration might carry more weight in his favour. This, however, is not the case here. While the Tribunal acknowledged that it will be difficult for the applicant to re-establish himself in New Zealand, the expectations of the Australian community demand that the deportation order be upheld.
For these reasons the Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  1.8.00
Date of Decision  23.8.00
Rep. for the Applicant             Applicant appeared in person
Counsel for the Respondent    Mr D Kirchhubel, Australian Government Solicitor's Office