Swan and Minister for Immigration and Multicultural Affairs - [2001] AATA 989

DECISION AND REASONS FOR DECISION [2001] AATA 989

ADMINISTRATIVE APPEALS TRIBUNAL)

N° V2001/240

GENERAL ADMINISTRATIVE DIVISION)

KATHRYN ANNE SWAN

Applicant

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:             5 December 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

………………………………………..
Deputy President
IMMIGRATION — deportation — possession of drugs with intent to sell or supply — unacceptably high risk of recidivism — deportation order affirmed

Migration Act 1958 ss.200, 201, 499

REASONS FOR DECISION

5 December 2001 Deputy President G.L. McDonald

This is an application to review a decision of the Minister for Immigration and Multicultural Affairs ("Minister") to deport Mr Bernandus Damanik ("the deportee") because of his conviction in The District Court of Western Australia in Perth on 2 October 1998 for the possession of the drug "ecstasy" with intent to sell or supply. The sentence of five years imprisonment imposed after his conviction renders the deportee liable to deportation under the provisions of section 201 of the Migration Act 1958 ("the Act"). The Minister also signed a certificate under section 501 of the Act declaring the deportee to be an "excluded person" for reasons this Tribunal need not go into here, that certificate has been rendered inoperable. However, the deportation order was implemented and the deportee has been returned to the Republic of Indonesia, that being his country of citizenship.
The applicant in this matter is Kathryn Swan, the deportee's wife. She is an Australian citizen. Ms Swan and the deportee met and married in Indonesia. That marriage was not recognised in Australia. After the deportee arrived in Australia on 2 February 1990, he and Ms Swan were, again, married in Australia on 17 March 1990. On 12 November 1990 their child, Eden Maree Swan, was born. By that time, Ms Swan and the deportee had however separated.
In 1992 the deportee was convicted in New South Wales of one count of unlawful use of a motor vehicle and placed on a good behaviour bond for two years. In late 1993 he moved to Perth. In 1995 he was convicted of an offence of dangerous driving. Later that year he was convicted of reckless driving. He was convicted twice in 1997 of driving while his licence was under suspension and once for that offence in 1998. In 1997 he was convicted of possession of cannabis with intent to sell and later that year for the offence which led to his deportation.
The District Court of Western Australia found that the deportee had attempted to sell ecstasy to an undercover police officer. The court declared the deportee to be a drug trafficker pursuant to the Western Australian Misuse of Drugs Act. When sentencing the deportee Hammond CJDC, inter alia, said:
. . .
I have reviewed the tapes and the file in this matter generally and find that there is not enough before me to enable me to comfortably reach the conclusion that you are at the higher or upper range of dealer.
While one might have suspicions, there is not enough before me to make the conclusion that your involvement is at the higher end. You will in my view have to be treated as a lower to medium level distributor but who, nevertheless, is an important part of the distribution of ecstasy within the community. I would, however, on the evidence come to the conclusion that you were not simply a victim of circumstances or an addict driven by compulsion but that you were well and truly part of the commerciality of the deal, as crown counsel described it.

His Honour imposed a period of five years imprisonment (reducing it from a proposed seven years as the result of the deportee's prompt plea of guilty) and ordered that the deportee be able to be paroled.

The Tribunal is satisfied that within the terms of the Act the deportee is liable to deportation. Under the provisions of section 200 of the Act, deportation is within the discretion of the decision-maker. The decision-maker's discretion is to be exercised having regard to the General Direction – Criminal Deportation Nº 9 ("the direction"), issued under the provisions of section 499 of the Act by the Minister. Clause 4 of the direction states that 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.

The decision-maker is to be guided by two primary considerations, viz:

the expectations of the Australian community ("the community"), and
any parental relationship between a child and the potential deportee in which case the best interests of the child are to be taken into account.

With respect to the community expectations, clause 8 provides that:
. . .
(a)[it is] . . . expected 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 risk to the community and the need for its protection the decision-maker is to look to:

the seriousness and nature of the crime,
the risk of recidivism, and
the likelihood that deportation will discourage the commission of similar offences by other persons.

The possession of drugs for the purpose of trafficking is categorised in clause 11 of the Ministerial Direction as being "very serious". Taking into account the provisions of clause 12, that the sentence imposed is an indication of the seriousness of the offender's conduct against the community, and bearing in mind the sentencing judge's above quoted remarks, the Tribunal is satisfied that the deportee was not at the high end of criminality but a lower to medium level distributor. However, the deportee's other offending, particularly his series of offences in 1997 of driving whilst under suspension, are indicative of a general lack of regard for the Australian legal and court system.
The Tribunal will next consider the risk of the deportee committing further offences. In doing this, the Tribunal is required by clause 13 of the direction to have regard to the ". . . person's previous general conduct and total criminal history" as being highly relevant. The deportee has committed a variety of offences. It is clear that the conviction on the possession with intent to sell or supply offence is, however, the most serious. The Tribunal notes the increase in the deportee's offending in the period leading up to his most recent conviction. It is, as has been stated by the Tribunal previously, impossible to eliminate the risk of an offender committing further offences. What must be attempted is to reach an assessment of the likelihood of the commission of further offences, particularly offences which are likely to put at risk Australian citizens. In this case the fact that the deportee has been previously convicted of driving offences, of which reckless driving is the most serious but driving while his licence was under suspension is the most persistent, in combination with the trafficking offence leads the Tribunal to a conclusion that there is a moderate likelihood of the deportee committing further offences. The Tribunal is satisfied that this is particularly so if the deportee continues to live apart from his wife, Ms Swan, and child, and in circumstances where he seems unable to find and sustain regular employment.
The Tribunal doubts, having regard to the provisions of clause 14 (dealing with general deterrents) of the direction, that much weight can or ought be contributed to the deportee's deportation inhibiting other like minded non-citizens from committing similar offences. Accordingly, the Tribunal does not attribute any determinative significance to this aspect. Serious and all as the deportee's drug trafficking offence is, it is not of such a nature that it can readily be regarded as a crime so abhorrent to the community that the deportee should not be allowed to remain in the community. As stated earlier in these reasons, the Tribunal accepts the sentencing judge's comments that the deportee is at the lower to medium range of offenders for this type of offence. Had the deportee been in the higher category of drug distribution, then clause 15 of the direction would have had some relevance.
The Tribunal now turns to consider the best interest of the deportee's child. The child is now 11 years of age. The deportee has never lived with the child, nor sought or had access (other than by telephone) with her. The Tribunal is satisfied that the deportee has never provided any financial support for the child. Ms Swan told the Tribunal that she enjoyed a good relationship with the deportee's family in Indonesia and that she and the child had visited the deportee's family on two occasions. On one occasion the deportee was also to be present but, because of his detention with respect to the drug trafficking offence, he was unable to be present. Ms Swan told the Tribunal that she had provided for the child but that, if she had been unable to do so, then she was sure the deportee's family would assist her if she requested assistance from them.
The oral evidence given by Ms Swan and the deportee to the Tribunal was unusual. Although they had now been separated for in excess of 10 years, both evinced a commitment to the marriage and to their child. Ms Swan told the Tribunal that she had earlier formed the view that, if the deportee was not going to participate in the marriage, then it was in the child's best interest if he had no contact with the child. Accordingly, the period following the end of 1990 she discouraged contact between the deportee and the child. She said that, after the deportee moved to Western Australia, contact was largely lost as she and the child continued to live in Victoria. Such contact, as there was, was arranged through the deportee's family in Indonesia with whom, as stated earlier, Ms Swan continued to enjoy a positive relationship.
The visit in 1998 of Ms Swan and the child to Indonesia was at the expense of the deportee's family planned as an attempt at the re-establishment of the marriage. For reasons stated earlier, the deportee was not present and accordingly the attempt failed.
There was a conflict in the evidence between the deportee and Ms Swan as to the contact the deportee had had with the child. The deportee claimed he had had regular contact with the child while he was in prison (in Western Australia). Ms Swan claimed that, while she had had telephone contact with the deportee, she had not allowed contact with the child because of a background of bad language from other prisoners which could be heard over the telephone. Ms Swan told the Tribunal that she had not yet told the child of the deportee's conviction and sentence.
The child suffers from scleroderma. Scleroderma is an unusual condition connected with a malfunction in the immune system which, in particular, with rapid onset has the potential to be life threatening. In the child's case it is currently stabilised by her taking drugs. Her condition requires monitoring at regular intervals. Ms Swan pointed out, and the Tribunal accepts, that the condition can be treated more effectively in Australia than in Indonesia. It is clear, however, the child's ability to travel, at least for short periods, is not precluded as the result of the condition. It is clear the deportee is aware of the child's condition.
Ms Swan works and studies and as the result of assistance given by her father, owns a home unit in which she and the child live. Currently the deportee is working, apparently on very low wages, for a company associated with one of his siblings in Indonesia. He claimed not to be earning sufficient money to enable him to make any remission for the child's support. There was no evidence that the deportee acknowledged the child's birthday or any other occasion by making contact with her or sending a card or present.
The deportee expressed the desire to return to live in Melbourne with Ms Swan and the child. Since he had no particular qualifications, he anticipated obtaining whatever employment he could in order to support them. It was Ms Swan's evidence that, despite the 10-year separation from the deportee, she was committed to the continuation of the marriage and believed that it was in the child's best interests for the deportee to be part of the family. She stated that, even if the marriage did not succeed, she had now changed her view and accepted that it was in the child's best interests to have contact with her father.
The Tribunal notes that clause 18 of the direction provides that:
". . . the starting point for any consideration of the best interests of the child would be that the child's best interests will be served if the child remains with its parents.

Having regard to the provisions of clause 19, the Tribunal concludes that the child, while she had not suffered any physical or direct emotional trauma arising from her father's unlawful conduct, nor has she been the subject of any abuse from him, she does not enjoy a close relationship to him such that her relationship with him could not be described as close. The child is an Australian citizen who has been brought up in the Australian environment. The child has been educated to date in Australia and, given the physical separation of her parents, is unlikely to suffer any emotional or psychological disturbance as the result of her father's deportation. Ms Swan did not express the view that she intended to relocate with the child to Indonesia in order to be with her husband. Rather, Ms Swan saw her future and that of the child as being within Australia. Apart from any other consideration, the child's need for medical monitoring would be of paramount importance.

Finally, the Tribunal turns to the other considerations. It is hard for the Tribunal to accept that the deportee has suffered hardship as the result of his return to Indonesia. Since his contact with Ms Swan after their separation has been, at best, desultory and in as far as contact with his child was concerned it has been even less frequent, it is hard to see how separation from them could bring hardship to him.
While the Tribunal has considerable sympathy for Ms Swan's commitment to the marriage and the hope that a renewed family relationship could be established if the deportee is allowed to return to Australia, that hope is, at best, speculative. No such attempt was made in the period immediately following their separation in 1990. Given any proposal for a reconciliation in Indonesia, was at that time paid for by the deportee's parents, leaves the Tribunal in considerable doubt as to the degree of commitment to such a reconciliation by the deportee, despite his oral evidence to the contrary.
Neither has the deportee demonstrated a commitment to support – emotionally, financially or physically – his daughter. He has, to all intents and purposes, absented himself from her life and from participating in giving her parental love and guidance. Even since his return to Indonesia, he has not, in however small way, offered financial assistance either to the applicant or to his daughter. He has not participated in the process of seeking treatment for his daughter although apparently knowing of her scleroderma condition and, at best, has only infrequently inquired after his daughter's health through her mother on the telephone. That the deportee's family may be prepared to provide financial assistance to Ms Swan and his daughter should the need arise is a reflection on their acknowledgment and commitment of the existence of their grandchild, more so than it is any acknowledgment or commitment evidenced by the deportee.
From the evidence before the Tribunal, particularly having regard to the lengthy time Ms Swan and the deportee have been separated, and the fact that the child has had very little contact with the deportee, the Tribunal is satisfied that the proposal for a reconciliation, should the deportee be allowed to return to Australia, is, while a commendable ideal, too speculative in nature to be regarded as realistically likely to succeed. The evidence before the Tribunal does not leave the Tribunal satisfied that the child's best interests would be served if her father was allowed to return to Australia on the basis of potential re-establishment of the family relationship. In considering the other paramount interest, that of the community, the Tribunal is satisfied that, having regard to the nature of the offence leading to his deportation, his past offences which demonstrate a disregard for Australian law and court decisions, that there is an unacceptably high risk that the deportee may commit further offences if the deportation order is overturned. While the deportee will not be able to return to Australia there is nothing to stop Ms Swan and the child visiting him in Indonesia for periods consistent with the child's requirement of receiving medical attention. In the opinion of the Tribunal, none of the secondary factors outweighs the Tribunal's conclusions in relation to the two paramount factors. The Tribunal is satisfied that the preferred decision is to uphold the deportation order.
It follows that the decision under review should be affirmed.

I certify that the twenty-two (22) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G.L. McDonald, Deputy President
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  23 October 2001
Date of Decision  5 December 2001
Counsel for the Applicant        Self
Solicitor for the Applicant         N/A
Solicitor for the Respondent    Mr R. Holland, Departmental Advocate