Tismanaru and Minister for Immigration, Multicultural and Indigen Ous Affairs

[2003] AATA 502

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 502

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/9

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ADRIAN JOHN TISMANARU

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon RNJ Purvis, Q.C, Deputy President

Date30 May 2003

PlaceSydney

Decision The decision under review is set aside.

[SGD] The Hon RNJ Purvis, QC             Deputy President

CATCHWORDS

Immigration – deportation order – Applicant held at Villawood Detention Centre – past history of antisocial conduct and behaviour – criminal activities to support drug usage – deterioration of relationship with partner and daughters  – Applicant began living on street as vagrant – Applicant became known to drug and alcohol counsellor and Anglican Minister – regular attendance at Bible Study classes by Applicant – genuine faith – exhibition of caring attitude and concern for others - cessation of drug usage – likelihood of recidivism low – Applicant diagnosed with multiple sclerosis and memory loss – reestablishment of relationship with son – son emotionally attached to Applicant - employment and accommodation available to Applicant – deportation of Applicant to Romania would result in hardship –decision under review set aside

Migration Act 1958 - s200, s201, s204

Ministerial Direction No. 9 – General Direction – Criminal Deportation

REASONS FOR DECISION

May 2003 The Hon RNJ Purvis, Q.C            

the application

1. This is an application by Adrian John Tismanaru ("the Applicant") seeking review of a decision made by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") on 8 April 1997 ordering, pursuant to the provisions of section 200 of the Migration Act 1958 ("the Act"), the Applicant's deportation from Australia.

2.      Seemingly the Applicant was not served with the deportation order until 2 December 1998 when he was detained but on indicating an intention to appeal to the Administrative Appeals Tribunal ("AAT") against the order he was conditionally released from detention. The Applicant did not comply with one or more of the conditions of his release from detention and was again detained on 30 July 2001 and held at Villawood Detention Centre where he has since remained.

3.      The Applicant lodged his application for review with the Tribunal on 22 December 1998 and the matter proceeded to a hearing on 9, 10 and 11 November 1999. On the latter mentioned date the further hearing was adjourned to a date to be fixed. It was listed before the Tribunal on 19 December 2000 when there was no appearance by or on behalf of the Applicant. It was again listed on 1 February 2001 when on the Applicant not appearing, the application was dismissed. In due course the Applicant applied for reinstatement of the part heard application which, after hearings or mentions on 5 February, 15 and 29 April, 22 October, 22 and 28 November 2002 was on the 20 December 2002, was granted. The Tribunal published its reasons for reinstating the application on 20 December 2002 (ReTismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322) and where relevant such reasons are to be read as incorporated into and forming a part of the present reasons for decision on the substantive application.

4.      The Tribunal relies on the findings of fact and statements of fact as set forth in such earlier reasons and where relevant relies upon them in support of the decision made on the substantive application.

the hearing

5.      As above mentioned the hearing of the application referable to the review of the deportation order began on 9 November 1999 and concluded on 28 April 2003. Whilst on the earlier occasions the Applicant appeared on his own behalf, or the with assistance of a friend, he was on 28 April 2003 represented by Mr Stephen Kavanagh, the Respondent by Ms Sharon Hanstein of Messrs Blake Dawson Waldron Lawyers.

6.      The documents to that date admitted into evidence in the substantive application and the reinstatement application were itemised in the reasons for decision of 20 December 2002. At the hearing on 28 April 2003 the following additional documents were admitted into evidence:

Exhibit	Description	Date
3	Report from Dr Ramesh Nair, Clinical Psychologist	24 April 2003
4	Copy of warrants from Victoria Police	11 September 2003
5	Criminal record from Magistrates’ Court	8 November 1999
L	Faxed letter from Mr Washington Soca	28 April 2003

7.      Oral evidence additional to that detailed in the earlier reasons was given by Mr Ness Sperrotto, Mr Abel Clark, Ms Kylie Fogarty, Reverend Francis Chalwell, Mr Donald Newland, Mr Robert Raves, Dr Ramesh Nair and Mr Washington Soca.

chronology of events

8.      An appreciation of the relevant facts then in evidence and of the criminal record of the Applicant since his arrival in Australia as a refugee from Romania was set forth in the earlier reasons. It is of assistance, however, in obtaining an overall awareness of the various factors that have contributed to the position in which the Applicant now finds himself and as they are more particularly relevant to the deportation decision to briefly itemise the more significant events other than those referable to the criminal and other activities as earlier so detailed. There was no issue raised between the parties as to the accuracy or acceptance of the happening of such events:

25.05.1962

Birth of Applicant in Romania

07.10.1981

Applicant arrived in Australia under special humanitarian program
Applicant employed as storeman
Applicant employed making brakes and clutches
Applicant employed with Koonara Heaters
Applicant's brother migrates to Australia

03.04.1985

Robert Raves son of the Applicant is born

26.9.1985

Applicant's brother dies in Australia

12.1985

Applicant's father dies

Early 1986

thereafter

Applicant began drinking, using heroin, smoking marijuana as a result of stress and confusion after father's death
Applicant began offending. He committed crime to support his drug habit
He was convicted of various offences on: 28/9/1987, 11/8/1988, 17/8/1989,  2/2/1990, 7/5/1990,  15/5/1990, 22/5/1990, 13/6/1991, 14/6/1991 and 28/8/1992

07.12.1992

Applicant interviewed by Respondent in relation to possible deportation

03.1993

Applicant relocated to Sydney
Applicant met Mr Sperrotto and was baptised
Applicant relocated to Melbourne

18.01.1994

Applicant convicted of offence

29.03.1994

Applicant interviewed by Respondent in relation to possible deportation

31.05.1994

Applicant convicted of offence and sentenced to a term of imprisonment

04.05.1995

Applicant released from prison

31.07.1995
06.10.1995
26.03.1996
14.06.1996

Applicant convicted of offences and sentenced to terms of imprisonment

01.10.1996

Applicant released from prison. Applicant has not offended since that time
Applicant meets Ms Michele Casey

15.12.1996

Applicant interviewed by Department in relation to possible deportation
Applicant and Ms Casey relocated to Sydney

08.04.1997

Respondent orders deportation of the Applicant

1997

Applicant using heroin

16.12.1997

Applicant convicted of offence for event pre dating 1.10.1996
Missy Casey, daughter of the Applicant, born

02.12.1998

Applicant served with deportation order and detained
Released from detention subject to conditions

1998

Applicant employed by Baptist inner city Ministry

22.12.1998

Applicant lodges application for review of deportation order with Tribunal

04.1999

Lisa Casey, daughter of the Applicant, born
Missy and Lisa Casey made Wards of the State

03.2000

Applicant leaves Walker Street Redfern residence and Ms Casey and begins living on the street

Early 2001

Applicant last used heroin

06.03.2001

Applicant becomes "born again Christian"

06.2001

Applicant meets Reverend Chalwell

30.07.2001

Applicant detained at Villawood Immigration Detention Centre

12.2001

Applicant commences meaningful contact with his son Robert Raves

relevant legislation and MINISTERIAL direction

9. So far as relevant to these reasons the Act provides:

“200.   The Minister may order the deportation of a non-citizen to whom this Division applies.

201.    Where:

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

(B) for periods that, when added together, total less than 10 years; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

...

204. Where:

(1) Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 and subsection 202(1), the length of time that that person has been present in Australia as a permanent resident or as an exempt non-citizen or a special category visa holder.

..."

10.     The relevant Ministerial Direction is General Direction-Criminal Deportation-No.9. As relevant to the present application such a Direction provides:

“...

5. The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations. The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7). A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

6. In making a decision whether or not to deport a non-citizen, there are two primary considerations:

(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.

7. In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are;

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

(b)  the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.”

11.     Paragraph 8 of the Direction specifies that with respect to community expectations two aspects are to be considered namely :

“(a) the exception 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.”

12.     With particular reference to the protection of the Australian Community, of the level of risk to it and the need for its protection the Direction requires that consideration be given to:

“the seriousness and nature of the crime;

the risk of recidivism; and

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

13.     Paragraph 11 of the Direction instances offences which are considered by the Government to be very serious, included amongst which are drug related offences generally directed to the obtaining of an advantage, gain or profit by the dealer and crimes involving violence or the threat of violence as well as armed robbery. Paragraph 13 referable to the risk of recidivism requires a decision maker to give consideration to any warnings given to a prospective deportee, relevant criminal behaviour, the passage of time and the extent to which any rehabilitation has been achieved.

14.     The best interests of children who are in a parent/child or other close relationship with the potential deportee are also of primary consideration. With reference to other factors and consideration to be given to them the element of hardship both to a potential deportee and to any Australian citizens or permanent residents are to be considered in the weighing up exercise. Paragraph 22 of the Direction is specific as to the factors which are to be considered in relation to hardship.

additional facts relevant to factors that warrant consideration

15.     The factual situation relevant to the issues then before it including a consideration of the merits of the case sought to be advanced by the Applicant was set forth in the reasons given in the reinstatement decision. They are in many respects relevant to this substantive application. The matters now discussed are additional to those earlier considered and to be read in conjunction with them.

likelihood of reoffending

16.     It is not an exaggeration to say that following upon the deaths of his brother and his father and until he met Ms Casey in about 1996, that is, over a period of not less then ten years, the Applicant lived a dissolute life of little advantage to himself or any other member of the Australian community. He was frequently at issue with members of the law enforcement agencies and was a user and possessor of drugs of addiction. It is apparent that he was motivated to engage in criminal activities in aid of supporting his drug usage. Although the offence on which the Respondent relies in support of the deportation order was committed nearly 14 years ago (17/8/1989), the Applicant maintained his antisocial conduct and behaviour even though he was put on notice of possible deportation in 1994 and 1996. His association with Ms Casey appears to have brought a degree of stability to his life and the birth of his daughters in 1997 and 1999, a degree of purpose. However, as the relationship between himself and Ms Casey deteriorated, and the daughters became wards of the State the Applicant lost his motivation and stability and abandoned the way of life to which he had become accustomed. He began to live on the street as a vagrant.  Over the ensuing months he became known to Ms Kylie Fogarty, a drug and alcohol counsellor, the Reverend Chalwell an Anglican Minister, Mr Abel Clark and renewed his contact with Mr Ness Sperrotto by whom he had been baptised in 1993. He says, and it is acknowledged by these latter mentioned people and others, that he “found Jesus” and began to regularly attend Bible Study classes and the Mathew Talbot Care Centre. In July 2001 the Applicant was detained by officers of the Respondent and taken to Villawood Detention Centre. He has remained there up until the present time.

17.     Mr Sperrotto speaks of his observing a "drastic change" in the Applicant over the last few years. The Applicant's faith "is genuine". He has resolved to come through his difficulties has not used drugs and has ceased smoking.  There is according to Mr Sperrotto, "no chance" of the Applicant reverting to the use of drugs of addiction. He now exhibits a caring attitude and concern for others. He speaks frequently of his daughters and has recommenced and is maintaining a meaningful relationship with his son. There is value to the community according to Mr Sperrotto in having a person living in it who has “been through drugs” and is interested in helping young people and preventing them from "going through the gutter" as he had done. There is he said “a better life in not doing the sort of things that he did in the past”.. Mr Sperrotto has been visiting the Applicant at Villawood on a fortnightly basis and proposes to maintain the contact.

18.     Mr Abel Clark says that the Applicant "came off the streets and alcohol" when he became a Christian. He first met the Applicant through Bible Studies and at the Mathew Talbot Centre and now visits him regularly at the Detention Centre. He has noticed a marked change in the Applicant. He is "free from addiction, happier and easier to communicate with, a more loving character". Whilst acknowledging that change is an ongoing process Mr Clark believes that the Applicant will not go back on heroin. "I know" he says "where Adrian comes from I have been there myself".

19.     Ms Fogarty first met the Applicant in late 2000 or early 2001 at a time when she was doing volunteer work in counselling. She is aware of his background, criminal record and drug abuse. She spoke of his ceasing to smoke and the difficulty in “going off” addictive drugs. But, she said "if you get through detention without reverting to drugs" there is little likelihood on release of a reversion. She was impressed with the Applicant’s determination and his faith. The "most successful worldwide program” according to Ms Fogarty is “faith based". "He has done the hard yard" she said, and there is a low risk of reverting to drug usage.

20.     The Reverend Francis Chalwell has visited the Applicant in detention. He believes that the Applicant is "a genuinely converted believer", who, whilst angry at times with his life experience, was, when last seen "calm, confident and hopeful", expressing a desire to see his daughters.

21.     Dr Nair, a Clinical Psychologist, in his report (Exhibit 3) stated that he had had numerous therapeutic and supportive sessions with the Applicant, who "always showed good motivation and cooperation for the sessions and showed a positive response". Dr Nair reported that

"there are no gross behavioural or affective problems observed or elicited. His interpersonal and social interactive patterns are adequate with others and his affective responses are positive and show a healthy degree of motivation and hope." 

When considering the personality profile of the Applicant, Dr Nair noted:

" From that level of functioning his life at VIDC has helped him to bring a focus to his life, especially since the time he regained contact with his son the religious faith has helped his self esteem to obtain a healthy level of functioning and this in turn has brought in a resolve and a determination to seek a new path."

22.     Dr Nair observed the intense religiosity of the Applicant and “his faith in the Lord's saving power”. This intensity should continue. The likelihood of his re-offending is according to Dr Nair low, this seen in the manner in which he is coping with his multiple sclerosis (see below), his religious faith and the fact that life in detention has been a good rehabilitation forum for him. According to Dr Nair the Applicant is passing on his faith to others.

23.     On the basis of the evidence tendered before it, the Tribunal is satisfied that there is little doubt that the cause of the Applicant's criminal activities was the need to acquire monies to fund his drug addiction. If the addiction is no longer present, the antisocial behaviour should be at a minimum. The evidence which the Tribunal accepts is to this effect.

health of the applicant 

24.     As earlier noted in the reinstatement reasons the Applicant is not in good health. He has, inter alia, being diagnosed with multiple sclerosis but has declined to use the medications offered to him by the health professionals in order to ease his pain and other problems arising. According to Dr Nair his religious beliefs are at delusional intensity (that is, not rationally based) and this gives him the strength to cope with the multiple sclerosis and the environment of detention. As Dr Nair noted:

"One of the significant issues is the fact that the client has been diagnosed with Multiple Sclerosis (MS). This is a neuro-degenerative disease with a known negative outcome. The common affective reaction to such a diagnosis is severe depressive reaction with negative behavioural concomitants. But resuming the supportive sessions revealed a different reaction in the client. The mental status examination revealed denial and overcompensation in the client with religious beliefs amounting to delusional intensity. There were no cognitive distortions and he showed an adequate thinking pattern. There was insight regarding the illness and an adequate knowledge about the possible progress of the disease. The affective state revealed masked depressive affect with intense feelings of hope for a life in the community and the client being able to continue his religious work.

..."

25.     Mr Sperrotto is aware of the multiple sclerosis and has observed a degree of memory loss in the Applicant. Ms Fogarty has seen the Applicant as being under stress, being very anxious and displaying paranoia. She believes his church to be the best place for him to obtain assistance and is confident that if and when he is back in the community he will seek assistance and take medication. The Applicant's son Robert Raves is aware of his father’s condition and "wants to help him out for the rest of his life." The Reverend Chalwell believes that the Applicant's "fear of the system" may contribute to his not taking medication but that when he is released “he might well accept advice”.

robert raves  

26.     The re-establishing of a relationship with his son has been a significant factor in the stability now obtained by the Applicant. Robert speaks of a bonding having been formed, of the importance of his father to him and of his wishing to be with him on a permanent basis. If the Applicant should be deported, Robert said, he “would be heart broken”.

employment

27.     The Applicant has to date engaged in minimum employment. If he is to remain in Australia employment is available to him initially on a casual basis and if his performance is satisfactory then later on a full time basis. Mr Washington Soca, the Managing Director of Fairfield Floor Centre has known the Applicant for approximately two and a half years, is aware of his multiple sclerosis and is prepared to engage him initially on light duties.

romania

28.     The Applicant left Romania and entered Australia as a refugee. He has not returned. Mr Donald Newland gave evidence as to the present economic and social conditions in that country as he saw them. He spoke of high unemployment and the limited opportunities available to a person with multiple sclerosis especially in obtaining a position. The social support system as it exists in Australia is not available in Romania.

discussion, submissions and decision

29. On behalf of the Respondent Ms Hanstein referred to the provisions of the Act, Direction No.9, community expectations, the protection of the community and the community not being put at risk of the Applicant reoffending. There is no issue that many of the offences committed by the Applicant were of a serious nature and that they extended over a relatively lengthy period of time. The possibility of the Applicant reverting to his previous behaviour is to be considered in the light of his criminal history. Notice is to be taken of his failure to comply with the conditions imposed upon him after service of the deportation order..

30.     As earlier indicated in these reasons, the Tribunal accepts the evidence of Dr Nair and others to the effect that the risk of recidivism is low. As to his non-compliance with the conditions imposed on him after service of a deportation order the Tribunal is minded of the domestic and other circumstances earlier mentioned in which the Applicant then found himself.

31.     It was further submitted on behalf of the Respondent that should the Applicant's health decline, he may “well turn to drugs again”. There was evidence before the Tribunal to the effect that in the event of his health deteriorating he would be dependent on others and not able to revert to his earlier antisocial activities. The Tribunal accepts the likelihood of this being so.

32.     It is true to say, as it was also submitted on behalf of the Respondent, that deportation of a person who has engaged in criminal activities the like of those committed by the Applicant, might well act as a deterrent to others. But the deportation would need to be much closer to the occurrence of the events and be without the other subjective factors which will be referred to later in these reasons. The Respondent sought to minimise the hardship that would lie upon the Applicant in the event of his deportation whilst acknowledging the emotional hardship that might well be experienced by the son Robert.

33.     Mr Kavanagh appearing on behalf of the Applicant laid stress upon the Applicant’s religious beliefs they being strong and continuing and the rehabilitation that has occurred, the desisting from the use of drugs and the uneventful conduct of the Applicant over recent years.

34.     In paragraphs 35 to 44 of the reinstatement reasons consideration was given by the Tribunal to the merits of the case for deportation. The matters there discussed are relevant to and are relied upon in support of the present decision. On the basis of all of the evidence now before it, the Tribunal is satisfied that the likelihood of the Applicant re-offending is low and that with the continuing support of those who gave evidence and are appreciative of his condition and his strong faith that any aspect of rehabilitation not as yet fulfilled will in due course be satisfied.

35.     The employment and accommodation available to the Applicant should provide funds sufficient to his needs and enable him to adjust fairly quickly to a life free of detention. The particular circumstances as they relate to the Applicant, his offences occurring some years ago, his lengthy period of detention, his faith, his rehabilitation, all tend to detract from deportation if it were to occur being a deterrent to others.

36.     Even be it the daughters are now wards of the State and the Applicant does not presently have a parental relationship with them, he has displayed a concern for their welfare and may well in the future be able to materially if not psychologically contribute to their welfare.

37.     The son Robert falls into another category. He is now emotionally attached to his father and would suffer the loss of a bonding recently formed in the event of deportation. It is clear that the affection and support of Robert has been and will be a significant factor in the continuing rehabilitation of the Applicant.

38.     The Applicant, as already noted, has passed through years of antisocial conduct and depravation of his liberty. He is not a well man. He has lived more than half of his life in Australia. He has no family or other connections in or with Romania. Be it partly, if no wholly, as a consequence of his own conduct he may be seen as one of the underprivileged and deprived members of our society who has now with his faith, his declared supporters both lay and professional and the affection of his son and son's grandmother (Mrs Sleightholm), a distinct chance of regaining a semblance of manhood and a rightful and worthwhile place in the community.

39.     If the Applicant were to be now deported the hardship that he would experience would be such as to deprive him of the above mentioned support and more likely than not exacerbate his condition. The fact that he has had the strength to resist drug use and cease cigarette smoking and play a measurable part in consoling and counselling other detainees is supportive of his rehabilitation, that might otherwise be put at risk by deportation.

40.     None of the above should be taken as minimising the seriousness of the Applicant's criminal activities. They were clearly unacceptable to the Australian community. But, in balancing the relevant factors one against another, the other considerations, as already discussed in these reasons, are the more significant.

41.     Accordingly and for these reasons the decision under review is set aside.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C. Deputy President

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

Dates of Hearing  28 April 2003, 29 April 2003
Date of Decision  30 May 2003
Advocate for the Applicant       Mr S Kavanagh Kavcor Pty Ltd
Solicitor for the Respondent     Ms S Hanstein Messrs Blake Dawson and Waldron Lawyers