Townsend and Minister for Immigration and Multicultural Affairs

[2000] AATA 860

DECISION AND REASONS FOR DECISION [2000] AATA 860

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q99/686

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

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date27 September 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – deportation – abhorrence of crime – drug production – best interests of the children.
Migration Act 1958 s 200 

REASONS FOR DECISION

27 September 2000           Deputy President DP Breen, Presidential Member                  

1. This is an application for a review of a decision made on 3 June 1999 by a delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant, Phillip Correy Townsend, pursuant to Section 200 of the Migration Act 1958.

2. The matter was heard by me in Brisbane from 28 February to 1 March 2000.  Written submissions were received from the applicant on 5 June 2000 and from the respondent on 12 July 2000.  Submissions in reply were received on 24 July 2000.  The applicant was represented by Ms S Macgroarty of Counsel under the auspices of the Pro Bono Scheme.  The respondent Minister was represented by Mr T Ricketts, Departmental Advocate.

3. Oral evidence was given at the hearing by the applicant;  Allan Noonan, the applicant's brother-in-law;  Marion Townsend, the applicant's sister;  Patricia Townsend, the applicant's mother;  Veronica Hurst, the applicant's former de facto;  and Geoff Strube, a Development Guidance Officer of the Education Department.

4. The following documents were admitted into evidence.

• Exhibit 1A          "T" Documents

• Exhibit 1B         Supplementary "T" Documents

• Exhibit 2            Statement of Patricia Ann Townsend dated 28.2.00

• Exhibit 3            Statement of Marion Athene Townsend  dated 28.2.00

• Exhibit 4            Statement of Allan Noonan dated 21.2.00

• Exhibit 5            Confidential Guidance Report by Geoff Strube dated 10.6.99

• Exhibit 6            Federal Police File

• Exhibit 7            Queensland Correction Services File – extract

• Exhibit 8            Statement of Phillip Correy Townsend dated 28.2.00

• Exhibit 9            Reference and Statement of Robert Hand dated 11.10.99

• Exhibit 10          References from Prison Personnel

• Exhibit 11          TAFE Certificates

• Exhibit 12          Prison Certificates

• Exhibit 13          Case Plan

• Exhibit 14          Family photographs

• Exhibit 15          Letter from the applicant's son to the applicant

• Exhibit 16          Statement of Veronica Marilyn Hurst dated 25.2.00

• Exhibit 17          Corrective Services Department File – extract

• Exhibit 18          Security rating of applicant

• Exhibit 19          Letters from the applicant's son to the applicant

1. Mr Townsend is 27 years of age and a New Zealand citizen. He arrived in Australia in 1986 with his mother and younger sister. The applicant was in a de facto relationship for nine years and has four children from that relationship. In 1993 the applicant was convicted of four counts of receiving, four counts of house breaking and five counts of stealing and was sentenced to three years imprisonment to be suspended after twelve months. It is this conviction which brings him within the ambit of Section 200 of the Migration Act 1958.

2. The applicable Ministerial Direction is Direction No 9 – General Direction – Criminal Deportation.  The Direction states that the primary considerations are the expectations of the Australian community and, where the applicant is involved in a parental relationship with a child, the best interests of that child.

3. 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. 

4. The applicant's criminal history begins in 1992 and continues until 1999, with a few minor gaps, which relate predominantly to periods of incarceration.  Apart from the deportable offences in 1993, the applicant breached a number of fine option orders in 1995 and 1996.  In 1998 he was convicted of a number of drug-related charges for which he was fined and he was convicted of serious assault and obstructing a Police Officer in the performance of his duty for which he was sentenced to one months imprisonment.  In October 1998 the applicant was first notified of his potential liability to deportation.  In February 1999 he was convicted of producing a dangerous drug and was sentenced to two and a half years imprisonment.  This is an appalling criminal history containing some very serious instances of criminal activity.

5. The production of drugs is a crime which the Australian community views with particular abhorrence.  It is a crime which puts Australians, particularly young Australians, at risk.  This country has enough of a problem with the importation of drugs without having non-citizens living here and producing them in our own backyards.  The applicant submitted that this particular instance of drug production should not be viewed so seriously, as it was for the applicant's own use as compared with if it had been for commercial use.  While that may be an important consideration for a Sentencing Judge, the fact is that all commercial producers start somewhere.  Fortuitously for both the applicant and the Australian community, the applicant failed in his attempt.  However, that failure is hardly something the applicant can claim credit for here.

6. The applicant has undertaken a number of courses in prison focused at addressing his offending behaviour.  He has worked successfully in the officer's mess and received good reports from prison officers.  The applicant has not had any breaches whilst in prison and his drug tests have all come back negative.  As such, it appears there has been some rehabilitation in the applicant during this period of incarceration and he has developed a more mature outlook on life.  However, given the nature of the applicant's criminal history, both in length and seriousness, the risk of recidivism the Australian community is expected to bear is extremely low.  The applicant would be residing with his mother if he were to be released and remain in Australia.  She is dedicated to his further rehabilitation and has in the past reported him to Police for his drug-taking.  He also has a solid offer of work from his brother-in-law.  However, it must be noted that family support and employment have not prevented the applicant from re-offending in the past.  Further, even the threat of deportation in 1998 did not deter the applicant from re-offending.  It is the Tribunal's view that although the applicant may have rehabilitated himself, even to a substantial degree, the risk that he may re-offend is still a real risk and it is higher than the Australian community would expect to bear.

7. The final aspect of the protection of the Australian community is the effect deportation might have in deterring other non-citizens from committing crimes in Australia.  In this case the applicant no longer associates with his former criminal friends and these were not notorious crimes.  As such, this consideration has little weight, if any.

8. 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 applicant's criminal history, particularly those offences involving drug production, is abhorrent to the Australian community and weighs strongly against the applicant being permitted to remain in Australia.

9. The second primary consideration is enlivened in this case as Mr Townsend has four children who are Australian citizens.  It is clear that the applicant loves his children and has a strong bond with them.  He is in regular contact with them by telephone and letters and they visit him in prison when they can.  The applicant is also a positive influence on the eldest child, Russell, who is a somewhat troubled young person.  It cannot be disputed that the children will suffer emotional hardship if the applicant is deported, particularly as their mother is not willing to take them to New Zealand until they are much older.  However, the applicant has been living away from his children for nearly four years already.  His former wife is now in a stable relationship so the children are a part of a new family unit.  The children do not rely on their father for financial support or their day-to-day care.  While one cannot predict with great accuracy the effect of separation from a parent on a particular child, the three younger children seem to have adjusted well to the current level of separation and are likely to adjust if the applicant is deported and their only contact is through letters or on the telephone.  The applicant's deportation may have more of an effect on Russell.  However, given time, it is likely that he too will adjust.  The removal of the applicant from the country would not leave the children destitute or alone and, given the seriousness of his criminal activity, their desire to have him as a physical presence in their life does not outweigh the expectations of the Australian community.

10. The secondary considerations include the degree of hardship suffered by the applicant and by Australian citizens or permanent residents.

11. The applicant has an offer of accommodation and employment if he remains in Australia.  He also has family here who support him and will be emotionally distressed if he is deported.  It must be noted, however, that none of the family relies financially on the applicant.  As such, the hardship they will suffer is limited to emotional heartache.  The applicant has limited ties to New Zealand despite having spent half of his life there.  The applicant has, however, gained further vocational skills whilst in prison and these should assist him in finding work in New Zealand.  New Zealand is a well-developed country and the applicant would not be subject to persecution upon his return.  The Tribunal acknowledges that it may take the applicant some time to re-establish himself in New Zealand and that he will lose the physical contact with his family.  However, the expectations of the Australian community demand that the deportation order be upheld.

12. For these reasons the Tribunal affirms the decision under review.

    I certify that the 16 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  28.2.00, 29.2.00, 1.3.00
    Final submissions  24.7.00
    Date of Decision  27.9.00
    Counsel for the Applicant        Ms S Macgroarty, Pro Bono Scheme
    Solicitor for the Respondent    Mr T Ricketts, Departmental Advocate