Townsend and Minister for Immigration and Multicultural Affairs - [2001] AATA 843

DECISION AND REASONS FOR DECISION [2001] AATA 843

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/423

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      PHILLIP CORREY TOWNSEND
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis, QC, Deputy President

Date9 October 2001
PlaceBrisbane

Decision      The decision under review is set aside. The matter is referred to the Respondent for further consideration and appropriate action. Liberty to apply is reserved.
  [Sgd] The Hon R N J Purvis Q.C.
  Deputy President
CATCHWORDS
IMMIGRATION – citizen of New Zealand in Australia as exempt non-citizen – convicted of offences – deportation order – consideration of protection of the Australian community – best interests of children

Migration Act 1958, ss200, 201, 499

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

REASONS FOR DECISION

The Hon R N J Purvis, QC, Deputy President
the application

This is an application made on the 9 June 1999 by Mr Phillip Townsend ("the Applicant"), seeking review of a decision of a delegate of the Minister for Immigration and Multicultural affairs ("the Respondent") made on 3 June 1999.
The decision under review, the Deportation Order, was to the following effect:
"Whereas Phillip Correy TOWNSEND is a non-citizen, who arrived in Australia on 30 December 1986.
AND WHEREAS the said Phillip Correy TOWNSEND was convicted at the Brisbane District Court in the state of Queensland on 28 May 1993 of 'Receiving' (4 counts), 'Housebreaking' (4 counts) and 'Stealing' (5 counts) for which he was sentenced to imprisonment for a total of 3 years.
AND WHEREAS at the time of commission of the said offences the said Phillip Correy TOWNSEND was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand citizen exempt non-citizen, or special category visa holder for less than ten years.
NOW I (Vincent McMahon), a delegate of the Minister of State responsible for administering the Migration Act 1958, DO HEREBY ORDER, in pursuance of the power conferred upon me by section 200 of the Migration Act 1958, that the said Phillip Correy TOWNSEND be deported from Australia." (T1, p5)
In his application for review of the decision the Applicant gave as his reasons for making the application:
"I have fore [stet] children in this country fore [stet] beautiful reasons to stay and get my life together." (T1, p4)
On 27 September 2000 a Deputy President of the Tribunal after a hearing affirmed the decision under review. On appeal to the Federal Court the decision of the Tribunal was set aside, the matter remitted for re-hearing by a differently constituted Tribunal.
the hearing
At the present hearing of the application, the Applicant was represented by Mr DC Rangiah of Counsel, the Respondent by Mr P O'Higgins, solicitor of Blake Dawson Waldron solicitors.
The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T33. Written material was tendered on behalf of the parties, the same being admitted as exhibits and marked accordingly, namely:
Exhibit No     Description    Date
A        Statement of Phillip Correy Townsend (first sentence of paragraph 30 struck out) 21 August 2001
B        Statement of Veronica Marion Hurst       23 August 2001
C        Statement of Fay Denise Noonan 27 August 2001
D        Statement of Marion Athene Townsend 27 August 2001
E        Statement of Fraser Syme            28 August 2001
F         Chronology of events
G        Document signed by Mr Noonan 27 August 2001
H        Statement of V M Hurst     25 February 2000

Letter from Phillip Correy Townsend to Ms Veronica Marion Hurst (and envelope)

The Applicant, his sister Mrs Faye Noonan, another sister, Ms Marion Townsend, and the Applicants' former de facto wife and mother of his four children, Ms Hurst, gave oral evidence upon which they were each cross examined.
the respondent's decision
In a Statement of Reasons of the 12 July 1999 the then acting Deputy Secretary of the Respondent stated inter alia as the reasons for the decision to order deportation of the Applicant:
"5. …
Mr McMahon found the following factors weighing against the deportation:
·     Mr Townsend has four children living in Australia, as well as his mother and sisters;
·     it is in the best interests of Mr Townsend's children that their father be allowed to remain in Australia;
·     whilst in prison Mr Townsend has behaved himself; and
·     under Australia's Criminal Deportation Policy, the deportable offences committed by Mr Townsend are not considered very serious.
6. Mr McMahon found that the following factors weighed in favour of deportation:
·     Subsequent offences committed by Mr Townsend such as the most recent of 'produce dangerous drugs' are considered to be very serious under Australia's Criminal Deportation Policy;
·     most of Mr Townsend's childhood was spent in New Zealand;
·     at the time of commission of the deportable offence, Mr Townsend had only five years, one month and twenty seven days lawful permanent residence in Australia;

with an extensive criminal history, Mr Townsend has a medium risk of recidivism;
Mr Townsend has been a burden on the Australian community; and
in the last two years, Mr Townsend has had little to do with his children.
7. Mr McMahon concluded that in the interests and protection of the Australian Community, the factors in favour of deportation far outweigh those factors in favour of Mr Townsend being permitted to remain in Australia.
Mr McMahon made the following comments when making the deportation order:
I considered the case to be well made. I paid particular attention to the potential effect on the children and gave weight to the very limited contact he had with them since separation." (T2, pp6-7)

relevant statutory provisions and directions

Relevant provisions of the Migration Act 1958 ("the Act") are:
"200 Deportation of certain non-citizens
The Minister may order the deportation of a non-citizen to whom this Division applies.
201 Deportation of non-citizens in Australia for less then ten years who are convicted of crimes
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; or
(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; 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."
Section 499 of the Act enables the Minister to give written Directions to a person or body having functions or powers under the Act, provided that the Directions are about the performance of those functions or the exercise of those powers. The Directions are not to be inconsistent with the Act or Regulations under which they are made and a person or body to whom the Directions are directed is required to comply with them.
Directions relevant to the present application are those contained in Direction No 9, and more particularly as such Direction details what are described as primary considerations – referable to expectations of the Australian community and the best interests of a child or children - and other considerations the latter as they relate to the degree of hardship which may reasonably be expected to be suffered by a potential deportee and Australian citizens or permanent residents that would reasonably be expected to flow from deportation.
With reference to the primary consideration as to the expectations of the Australian community it is relevant to consider the expectation that the community will be protected and not put at risk and that non-citizens who commit and are convicted of crimes that are abhorrent to the Australian community will be removed. Protection of the Australian community entails consideration of the seriousness and nature of the crime, risk of recidivism and the likelihood that deportation would prevent or discourage similar offences by other persons. In paragraph 11 of the Direction examples of the offences considered by the government to be very serious are detailed.
With reference to recidivism, a decision-maker is to have regard to the previous general conduct and total criminal history of a subject person the same being highly relevant to an assessment of the risk. The deterrent effect of a deportation is relevant to protecting the Australian community as is the expectation by such a community that non-citizen perpetrators of crimes abhorrent to it should not be allowed to remain in Australia.
Matters relating to the best interests of a child or children are detailed in the Direction paragraphs 16 to 20. Other matters that are relevant are the degree of hardship that maybe suffered by the potential deportee and Australian citizens or permanent residents including the potential deportee's family.
Direction 9 prescribes a process of decision making (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583). It requires the decision-maker, including the Tribunal, to have due regard to its content. It does not however purport to bind the decision-maker as to the weight to be given to the considerations; the Tribunal being entitled to pay heed to matters relevant and give due weight to the same as it considers appropriate having regard to the evidence and the particular circumstances.
the factual situation - generally
The Applicant was born in New Zealand on 12 July 1972. On 1 January 1987, when 14 years of age, he entered Australia with his mother and one of his sisters and has since resided in this country. The Applicant's parents had separated in 1980, his father then moving to Australia from New Zealand. The Applicant has seen his father on only a few occasions since that time. The Applicant remained at school for only a short period after his arrival in Australia, thereafter obtaining employment as a factory hand, driver and panel beater. He spent periods of time unemployed.
It was whilst he was employed by a furniture manufacturer, that he was, when only 17 years of age, encouraged by his peers to start using drugs. He was then in a relationship with a lady who became his defacto wife, she also began to use drugs.
In 1989, the Applicant entered into the defacto relationship with Veronica Hurst, of which relationship they have four children; a son Russell born on 28 June 1990, twin daughters Kira-Lee and Krystal born on 29 October 1993 and a third daughter Ashley born on 2 February 1995. The Applicant and Ms Hurst separated a relatively short time after the birth of Ashley.
On 28 May 1993 the Applicant was convicted and sentenced to three years imprisonment, the term of the same being suspended after he had served one year. On 5 March 1998 the Applicant was charged with various drug-related offences and as to those of a summary nature sentenced to three months imprisonment. As to the offences that were indictable he was on 16 February 1999 sentenced to two and half years imprisonment. The Applicant remains in custody pending determination of this application even though he was eligible for parole, after serving six months of the February 1999 sentence. While in jail he has maintained regular contact with the children.
Presently living in Australia are the Applicant's mother, his four children, three sisters and a brother. While he believes his father is living in this country, he has not seen him for some years and is not aware of his whereabouts.
By letter dated 28 October 1998 the Applicant was notified of his being considered by the Respondent as liable for deportation. The relevant order was made on 3 of June 1999.
criminal history
The criminal history of the Applicant details seven occasions when he has been before a Court, on some of which occasions more than one charge was laid against him. However, apart from "fine option" orders the charges relate to only two periods when he acted unlawfully, the first in 1992, the second in 1998.
Particulars of the criminal history are as follows (T9, pp95-97):
COURT/ESTAB        DATE OFFENCE     DECISION
Redcliffe M.C.           2/3/92 Possn pipe used in connection with smoking dangerous drug (28/2/92)          Probation 12 months
Marrie M.C.     5/8/92 Wilful & unlaw damage to property in the night-time (5/8/92)          Convicted & fined $200; Restitution $50
Brisbane D.C. 28/5/93          Receiving (4chgs btn (26/2 & 8/9/92); break & enter dwelling house with intent (4 chgs on/abt 8/9, 26/8, 1/9, 7/9/92) Stealing (5chgs on/abt 26/8, 1/9, 9/6, 7/9/92 & btn 25/8 & 19/9/92) On each charge: Imprisonment 3 years, concurrent, after serving 12 mths suspend, 2 years of sentence & not to re-offend within 4yrs
Caboolture M.C.        2/10/95          Application for fine option; order re: unregistered veh, cancelled plates (on 16/12/94)   Granted, fine option order, community service 108 hours
Redcliffe M.C. 2/10/95          Application for fine option order re: breach TIR reg 4.01 (06/1/93)   Granted, fine option order, community service 108 hours
Caboolture M.C.        3/5/96 Breach fine option orders x 2; imposed on 02/10/95 (Re: unregistered veh, cancelled plates, breach TIR reg 4.01)        On each breach: order revoked
Caboolture M.C.        6/3/98 9 DM possessing dangerous drugs (on date unknown btn 5/12/97 & 7/1/98); 10(1)/(A)/(B) DM possessing anything for use in the commission of a crime defined in part 2 (on date unknown BTN 1/12/97 & 7/1/98); 7(1)(C) vag obscene language in public place (5/12/98);    10.20A(2) PSAA obstruct police officer in performance of duty (5/2/98); 10(4)(B) DM fail to property dispose of needle and syringe (5/2/98); 469 CC/10.12 PSAA wilful damage – police property (2 chgs on 05/02/98); Breach bail act (contempt) (2 chgs on 11/2/98, 22/12/98)          One penalty imposed: Convicted & fined $600 in default imprisonment 12 days, time to pay 8 mths On all charges: Convicted & fined $200, in default imprisonment 4 days, time to pay 8 mths On all charges: Convicted & fined $300, in default imprisonment 6 days, time to pay 8 mths 1st chg: convicted & sentenced 2 mths imprisonment; 2nd chg: convicted and sentenced 1 mth imprisonment cumulative
Caboolture M.C.        6/3/98 9 DM possessing dangerous drugs (on 11/12/97)     Convicted & fined $300, in default imprisonment 6 days, time to pay 8 months
Caboolture M.C.        6/3/98 340 (B) CC serious assault (6/3/98); 10.20A(2) PSAA obstruct police officer in performance of duty 6/3/98     On each charge: convicted & sentenced 1 mth imprisonment, concurrent
Brisbane S.C. 16/2/99          8 DM producing dangerous drugs (BTN 3/3/98 & 6/3/98); above charges refer to indictment number: 394/98 Conviction recorded imprisonment 2 ½ years; recommended to be considered for release on parole after serving 6 months imprisonment

the section 201 offence

The Applicant had been in Australia for a period of five years, one month and 27 days up until the commission of the deportable offence on 26 February 1992. The circumstances of the commission of the offence and matters taken into consideration as detailed by the sentencing judge were:
"You have pleaded guilty to these offences and to that extent you have cooperated with the authorities. However, it also has to be said that this is an appalling account of criminal behaviour on your part. During a reasonably concentrated period you broke and entered houses, you stole property from the innocent occupants of those houses, you apparently hired a utility to assist you to do it, you received property stolen by others in which you may not have been involved, and you stole other property.
There are, in fact, five counts of stealing to which you have pleaded guilty, four of receiving, and four of housebreaking. This sort of depredation upon the community cannot be easily overlooked even in the case of someone young and even in the case of someone who may have had the disadvantage of coming at a early age from another country and facing difficulties here. In my opinion it would be to reduce the law almost to a laughing-stock if people, even young people, could commit offences of this magnitude and number and escape a custodial sentence. In my view, the Court has no option but to impose a custodial sentence.
Taking into account the various matters that have been and can be urged in your favour, I am prepared to accede to the submission that the sentence of imprisonment which I propose to impose might be, in part, suspended pursuant to the provisions of the relevant legislation. It is only because of those features that I feel able to act in this way. If you were older and did not have the other attributes, which had been mentioned, then I would both impose a heavier term of imprisonment and I certainly would not suspend any part of it.
In your case, however, you are sentenced to imprisonment for three years on each of the counts. The sentences are to be concurrent. Of that sentence two years' imprisonment will be suspended and the Court states that you must avoid committing any other offence for a period of four years from the date of this order in order to avoid being dealt with under s 147 of the Act which, in effect, is a provision requiring you to serve the suspended period of imprisonment. So the effect of that is that you will be imprisoned for a period of one year. The remaining two years of your sentence will be suspended and provided you do not re-offend within four years of today, that suspension will be effective." (T9, p68)

other offences

The Applicant did not re-offend within the 1993 suspended sentence period. The offences referrable to "fine option" are traffic related. The 1998 and 1999 convictions related to activities of the Applicant within the relatively short period there noted and the "serious assault" of 6 March in respect of which the Applicant was sentenced to one month imprisonment was committed while he was in police custody.
In his reasons given on 16 February 1999, the then sentencing judge said, as here relevant:
"You have been convicted on your own plea of a very serious offence, participating in what seems to be serious drug production and I accept that you were involved in a minor role in it, but nevertheless, you seemed to be willing enough to participate and assist these people in doing what they were doing.
…
Nevertheless the matter is serious enough to call for punishment. Your criminal history is not good, particularly for a man of your age, and you do not seem to have shown much effort to try to be a decent or responsible citizen.
…
Nevertheless, having regard to the gravity of the offence, I sentence you to imprisonment for two and half years. I recommend that you be considered for parole after six months. That is the best I can do.
…
You do not present too well, but you look as though you could present well and you look as though you could be a decent citizen, if you tried; and you could make something of your life as well.
…
That is for you to do something about and I am sorry, I am not really here to debate it. I am merely trying to explain to you that this period of parole is designed to try to keep you – give you added support in – morale support, so to speak - keep off this business, because – look, if you continue to behave as you have behaved, you are going to die young and the life that you do have left to you will be destroyed, either by drugs or spending long periods in jail.. And that is no way to live - not for a person like you.
…
If you keep going the way you are, by the time you are 40 you will be dead or you will be so chronically ill and in gaol that your life will be hell. Now do not make that the rest of your life. Seize the opportunity that I am giving to you of saying to yourself whenever you feel as though you want to get on the drugs or something like that, "Oh gee, there is that parole" and all that sort of thing and that will help you get over it, I hope. That is the best I can do." (T19, pp167-172)

In a report of 1 June 1999, an officer of the Respondent noted:
"Mr Townsend's deportable offences are not listed as serious under Australia's Criminal Deportation Policy. However, a subsequent offence of 'serious assault' is considered serious, although the sentence was only one-month imprisonment. The most serious of the subsequent offences is that of 'produce drugs', for which the offender was sentenced to 2 years 6 months imprisonment. The Government believes that persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people." (T9, p56)
The Applicant said that even though he was working he was not able to properly support his family. He stole money to this end. He used drugs to keep himself awake at work during the day. He became addicted and maintained his criminal activities in order to support his drug habit as well as to supplement the daily living costs of his family. His de facto wife had given birth to the twins prior to his release from jail in December 1993. He said he was not informed by the Respondent during or after his incarceration in 1993 that his commission of the offences rendered him liable to deportation.
The Applicant did not receive any counselling regarding drug use whilst in jail. After his release, he returned to using drugs; was unemployed for about one year but in due course obtained employment as a warehouse foreman supervising three trucks and seven to eight employees. It was at this time that he was fined for exceeding the speed limit and had his licence suspended. Not being able to drive he lost his job, and was unable to pay the fines. It was then, that he received the "fine options". He said, that he turned again to drugs "for comfort", his drug habit worsening until it was out of his control. He obtained work, but lost his job on account of his drug addiction. In 1995/96 he became involved with people producing drugs and was used as their "errand boy". In was consequent on these activities that he was charged with the drug related offences.
The Applicant has not used drugs since early 1999. He has undergone drug therapy. His state of health has improved markedly. He has resolved to not again involve himself with drugs or drug use. To this end, he has the support of his mother and two of his sisters.
protection of the australian community
the seriousness and nature of the relevant offences

It was submitted on behalf of the Respondent that whilst the offences which gave rise to the deportation are not specifically listed as "very serious" in the Minister's Direction, the Applicant has a "lengthy criminal history" including offences of possession and production of drugs as well as the assault charge. The deportable offences were sufficiently serious for the court to impose a term of imprisonment. The Applicant's criminal history, it was submitted, covers the period from February 1992 to March 1998, the offences weighing heavily in favour of deportation. The seriousness of the criminal activities indicates, it was submitted, that the Applicant presents an unacceptable level of risk to the Australian community.
It was accepted on behalf of the Applicant, that whilst the drug related offences in respect of which the Applicant was convicted in February 1999 may not be relevant to the power to deport, they are relevant when consideration is being given to the protection of the Australian community. The relatively short time frames during which the Applicant did engage in criminal conduct and the period that elapsed between the commission of the offences does mitigate, to an extent, their significance. There can be no doubt however that the the community should be protected from conduct the like of that which was committed or engaged in by the Applicant.
risk of recidivism

The Applicant says, that it was whilst at Wacol Moreton Correctional Centre and serving part of his most recent sentence, that he started to re-assess his priorities and to think differently about drugs. He says, that he "began to embrace the jail sentence as an opportunity to end his drug habit once and for all". Not only did he not use drugs, but he stopped smoking tobacco. He began to pay more attention to his physical health and diet, finding relief from his addictions through physical exercise. He completed a number of courses with TAFE and in-house prison programs, as well as obtaining a forklift licence and studying for a grade 10 certificate through distance education. Upon his transfer to Borallon Correctional Centre, he completed additional courses with TAFE in cabinet making, restaurant cooking and hospitality. He began work as a cook at the Centre. On completing his custodial sentence in February 2001 he was transferred to the immigration detention centre at Arthur Gorrie Correctional Centre. Whilst at the latter Centre his life was threatened by another person and he became involved in a fight in respect of which he was breached.
The Applicant proposes, if he is able to remain in Australia, to accept an offer of employment afforded to him by his brother-in-law who owns a number of butcheries. He is to become an apprentice butcher. He says that drugs "are no longer an issue for me and I am ready to resume a normal life again". He says that he has no intention to return to his previous lifestyle. The Tribunal accepts the sincerity of the Applicant's intent.
The Applicant's sister, Mrs Faye Noonan says that since her brother went to jail in April 1999, she has noticed a change in his physical appearance and way of thinking. She has visited him often. He told her of his decision to stop taking drugs and to alter his attitude towards life. She says that the change in the Applicant is apparent and it was on this account that her husband, accepting the reformation as she does, offered him a job in one of his butcher shops when he is released into the community. She has been told of the Applicant's plans for his future and for his children. He has recounted to her his desire that his children grow up knowing him and having him available to be of assistance to them, even though there will not be reconciliation between him and the children's mother.
Ms Marion Townsend, the Applicant's eldest sister has visited the Applicant in jail and has also noticed changes in his physical appearance and way of thinking. She has been convinced by her brother, that he has stopped taking drugs and is aware of the changes that have taken place in his attitude towards his life and society. She says that she is of the opinion that he has regained control of his life, that he is keen to make up for "those lost years", more particularly with his children and wants them to grow up knowing him and "having him around".
Ms Veronica Hurst, the Applicant's former de facto wife says that, since he has been in jail, she has "been surprised by his physical and mental state. He has stopped taking drugs and looks so well and healthy now". She says that he talks differently and "it is hard to believe it is the same man". The Applicant telephones the children on average three times per week and sometimes twice in the one day. The children with their grandmother have visited him whilst he has been in detention, or on occasions when she has travelled with them to Brisbane in the school holidays. Ms Hurst says that the children are "always excited to see or talk to their father and very upset when visits are at an end".
If he is able to remain in Australia, the Applicant said that he would initially live with his mother in that having spent three years in jail and in detention, he is not yet ready to set up accommodation on his own. In the course of his cross examination he was emphatic in saying that he would not revert to crime, "I now have a close knit family. At one time I thought that they were against me, but when it came to the crunch, they were always there for me".
It was submitted on behalf of the Respondent, that the Applicant's general conduct as well as his criminal history are relevant to assessing a risk of recidivism. The criminal history is lengthy, involving a number of individual offences. His behaviour has not been that of a responsible citizen. The Applicant it was submitted has a high risk of re-offending.
The Tribunal's attention was drawn by the Respondent to the fact that the Applicant had not reformed following his period of incarceration in 1993, and even though he maintained that of late a total change had occurred in his perception of and intended pattern for his life, the Tribunal ought to doubt the worth of the Applicant's testimony that he would not re-offend and that he has been rehabilitated. Whilst in detention he did, in the circumstances earlier described, engage in a dispute with another inmate and of late expose himself to an officer. The Tribunal accepts the evidence of the Applicant as to the circumstances that led to the dispute and can understand the frustration experienced by the Applicant that could have resulted in the exposing.
The Applicant was also criticised by the representative for the Respondent for having written to Ms Hurst some months ago, indicating to her the nature of questions that may be asked and the answers that she should give. It was clear that no one of the answers suggested was incorrect, but as submitted on behalf of the Respondent he intended to "tailor" the evidence of Ms Hurst to suit his "perception of favourable evidence." The Tribunal accepts this interpretation of the Applicant's intent, but again does not find this to reflect adversely upon his overall character. The Tribunal finds the Applicant as being determined to take hold of his life and so far as he is able to reconstruct and maintain a worthwhile relationship with his children. The Tribunal does not see this determination as being likely to lead the Applicant to re-offend.
On behalf of the Applicant, it was noted that his criminal history occurred primarily by reason of his former addiction to drugs and that "his desire and ability to stay away from drugs in the future obviously forms the key to the risk of recidivism". It is noted by the Tribunal that the Applicant has expressed his intention to end his dependence and has demonstrated insight and an awareness of the connection between the drug use and his criminal behaviour. He was and is forthright and frank in acknowledging his former behaviour. The observations made by his sisters and Ms Hurst as to the physical and mental changes that have occurred are supportive of his determination. The rehabilitation undergone by the Applicant is confirmatory of his intent.
Having considered all the evidence placed before it, the Tribunal is satisfied that the Applicant has paid attention to what was said by the sentencing judge in 1999 and has gained an insight into his past activity and the reasons for it. The Tribunal accepts that the Applicant intends to obtain employment, to accept that offered by his brother-in-law, and to afford his children such support and assistance as may be warranted. Whilst as his Counsel admitted, one can not be absolutely certain as to the future conduct of any person, the Tribunal is satisfied, that the risk of recidivism in the case of the Applicant is not high.
deterrent effect
Conduct similar to that of the Applicant in respect of which he was sentenced to terms of imprisonment, is not acceptable to the Australian community. However, even be it that there is evidence of the Applicant's brother having spent time in prison and Ms Hurst, the Applicant's former de facto wife having used drugs, the Tribunal does not see deportation as a significant deterrent. The offences committed by the Applicant were carried out in circumstances peculiar to himself and the domestic situation in which he was at one time placed. His association with other users no doubt contributed to his unlawful activities. There is no evidence however of such association being maintained.
community expectation
The Respondent contends that the seriousness of the crimes, the risk of recidivism and the deterrent effect of deportation all indicate that the Applicant presents an unacceptable level of risk of crime to the community. The drug offences in respect of which the Applicant was convicted are "considered abhorrent by the community". This is so. It is submitted that the community would "normally expect non-citizens convicted of such offences to be deported from Australia".
The Tribunal does appreciate the seriousness of the crimes, but does not see the risk of recidivism as being high. Nor does it see a significant deterrent effect in the event of deportation.
best interests of the children
The Applicant says that even be it that he and Ms Hurst used drugs and even be it that he and Ms Hurst were abusive and aggressive to one another, that on no occasion were the children physically abused nor did he ever allow the children to see their mother or father taking drugs. He regrets the abuse. He says that when his relationship with Ms Hurst ended in 1997, he went to live with his mother, Ms Hurst moving to Harvey Bay and later to Bundaberg. He found it difficult visiting the children, especially after he lost his driver's licence. He had little money and "was in such a bad condition, I didn't want my children to see me in the state I was in". Although he did not see the children once they moved to Bundaberg, he maintained contact by telephone. But in the period prior to his being sentenced in 1999 he visited the children on a number of occasions, travelling to Bundaberg by car with his mother. The children have visited him whilst he was in jail and since he has been in detention on a number of occasions; he has enjoyed their visits and he says that the children have always been happy to see him. He contacts them every weekend by telephone, sometimes more than once in a day. He speaks for about ten minutes to each child and then for a similar period of time with Ms Hurst, discussing the progress of the children in school and other issues. He writes regularly to them, sending them cards and presents. He has saved up money that he has earned in jail, so as to provide them with presents on their birthdays and for Christmas. He says that it is his:
"…utmost priority to play a more active role in the lives of my children as their father in the event that I am released from detention. I did not want my children to go through the feelings of abandonment I went through in my childhood with my father's absence in my life".

What he would seek, in the event of his release from detention, is to have the children stay with him and his mother during weekends and holidays.

He is aware that his son Russell has been affected by his absence and his grades at school had deteriorated. It was following his sentence in February 1999 that Russell's behaviour initially worsened, he running away from home and missing classes. The Applicant spoke to his son on a number of occasions and gained an impression that Russell was finding it difficult living in a predominantly female household without his father. The Applicant says that he was able to talk with Russell on a "man to man" basis. Since having had such discussion and since Russell underwent counselling at the Bundaberg Base hospital, improvement has been seen in his behaviour. The Applicant also has had the opportunity of spending time with his daughters when they have visited him in jail and detention. He says that if he should be deported to New Zealand, it is unlikely that he would see his children, their mother not permitting them to travel to New Zealand on their own and she being unable to afford the travel. The Applicant wishes to play a significant role in the children's development years.
Ms Hurst also spoke of the behavioural problems that were experienced by Russell and of "the main cause of improvement in Russell's behaviour being his contact with Phillip [the Applicant]". His sisters, Mrs Noonan and Ms Townsend, spoke of their brother's interest in the welfare of his children and of their reaction to him, as well as the clearly apparent bonding between the Applicant and the children. Ms Townsend and her de facto husband have often visited the Applicant whilst he has been in jail and detention, taking with them their three sons who she says are very fond of the Applicant. As earlier indicated the children's mother expresses concern about the effect of the deportation order on Russell and the upset that would be experienced by the girls in the event of deportation. She acknowledges the assistance the Applicant has afforded to her with the children.
The Respondent acknowledges the relationship existing between the Applicant and the children and especially with Russell. The behaviour problems are "noted". Mention was made of the significant periods when the Applicant did not have contact or substantial contact with the children and the periods of time he has spent in prison. It is true that after his release from jail in 1993 and more particularly since about 1995, he did not present a positive role model to them. However, since early 1999 he has maintained an association with them and indeed played a not insignificant part in assisting in a resolution of Russell's emotional problems.
The Applicant maintains that it would be in the children's best interests for him to have meaningful contact with them. This view is supported by Ms Hurst. He recognises the importance of playing an active role in the lives of the children and recognises the mistakes made by him in the past. He maintains his intention so far as he is able to ensure that his children do not experience the same type of parental absence that he was subjected to as a child.
The Tribunal is satisfied that the children would experience considerable hardship in the event of their father being deported and that it is in their best interests for him to remain in Australia and increasingly become significant as a meaningful factor in their lives.
other relevant considerations
hardship to the applicant
On behalf of the Respondent it is said, that he would be unlikely to suffer any significant hardship if he were to be deported to New Zealand. He does not have an ongoing marital or de facto relationship, his formative years were spent in New Zealand, he was only resident in Australia for just over five years at the time of the commission of his deportable offences and he has few non-family ties with Australia. It is acknowledged that he does however have strong ties to his family in Australia.
On the other hand he has no contact with relatives or friends in New Zealand and the prospect of his abstaining from the use of drugs is significantly higher if he remains in Australia. He has resided in this country since the age of 14. He has a significant meaningful relationship with his four children.
hardship to others
Mention has already been made of the close family ties existing between the Applicant, his mother and at least two of his sisters, Mrs Noonan and Ms Townsend. Each of them in their evidence before the Tribunal has acknowledged the noticeable improvement in the Applicant of recent years and the bonding between members of the family. On behalf of the Respondent it was said and recognised that the Applicant's family will undoubtedly suffer emotional distress if the deportation order is affirmed. It was submitted however that emotional distress does not amount to hardship. There will not been an adverse financial effect upon them.
The Tribunal is not satisfied that the Direction is aimed solely at non-emotive hardship. Depravation of family bonding can well constitute hardship. The Tribunal is satisfied that in the event of the Applicant being deported, members of his family would experience measurable emotional distress, the same impacting on their lives.
submissions and decision

The Respondent maintains that the seriousness of the deportable offences and the other offences of which the Applicant has been convicted, the same including drug and property offences, with an alleged significant risk of recidivism and a lack of contribution to the Australian community, should be given significant weight in favour of deportation. On the other hand it is suggested that the Tribunal "treat cautiously" other considerations instancing the limited nature and extent of the relationship between the Applicant and the children, the negative role model he provided with Ms Hurst, his separation from Ms Hurst and his lack of financial means. The Tribunal notes the submissions made, but is of the opinion that there is not a high risk of recidivism in the Applicant. The Tribunal finds that the Applicant has been rehabilitated so far as is possible in a correctional/detention environment and acknowledges the frustration that lead him to behave in the manner earlier indicated. He may well be a desperate man, but desperate in the sense of seeking to play a significant part in the lives of his children and redirect his own manner of living and working. The Tribunal does not see the community being at risk from the Applicant.
The best interests of the children will be measurably served by the Applicant being present and playing a meaningful role in their lives. He has already displayed this capacity with his son.
The Tribunal having considered the matters that are of concern both primary and otherwise as detailed in the Minister's Direction, is satisfied that the factors in favour of the Applicant remaining in Australia outweigh the factors in favour of deportation.
Accordingly the decision under review is set aside. The matter is referred back to the Respondent for further consideration and appropriate action. Liberty to apply is reserved.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, QC, Deputy President.
[Signed]: Rachael Quinn            .....................................................................................
  Associate
Date/s of Hearing  29 August 2001
Date of Decision  9 October 2001
Counsel for the Applicant        Mr DC Rangiah
Solicitor for the Respondent    Mr P O'Higgins