Versace and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 562

DECISION AND REASONS FOR DECISION [2002] AATA 562

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/908
GENERAL  ADMINISTRATIVE DIVISION
  Re:       GLISHA VERSACE
  Applicant
  And:     MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS

AFFAIRS
  Respondent

DECISION

Tribunal:       Deputy President J. Block

Date:10 July 2002

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) J. Block
  Deputy President
IMMIGRATION - criminal deportation – whether offences serious – whether risk of recidivism – degree of deterrence to others – best interests of the child – hardship to Australian citizens or permanent residents
Migration Act 1958 s.200
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Kavanagh and Minister for Immigration and Multicultural Affairs [2000] AATA 893
Re Salazar-Arbalaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98

REASONS FOR DECISION

10 July 2002  Deputy President J. Block
1(a) The decision under review is the decision dated 27 June 2000 by a delegate of the Minister for Immigration and Multicultural Affairs (as he then was) to deport the applicant pursuant to section 200 of the Migration Act 1958 ("the Act"). 
(b)      The applicant was represented by Mr M. Gerkens of Fernandez Canda Gerkens, solicitors, while the respondent was represented by Mr T. Fell of the Australian Government Solicitor's office.
(c) The Tribunal had before it the T documents and supplementary T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("collectively the T documents"), together with exhibits as follows:

Exhibit A1 is a statement dated 3 April 2002 by the applicant (using the name of Grigore Rascovici)
Exhibit A2 is a psychological report dated 16 January 2002 by Mr J. Redman concerning the applicant
Exhibit A3 is a psychological report dated 16 January 2002 by Mr Redman concerning Liliana Rascovici ("Liliana").  (I note that, throughout the hearing, Liliana was referred to as the applicant's wife.  In fact they are not married, having been divorced in either 1998 or 1999.  However, as a matter of convenience and because she was referred to as his wife during the hearing, I propose to do so in these Reasons, noting that there is some evidence as to an intent to remarry; references to the applicant's wife contained in these Reasons should be construed accordingly.)
Exhibit A4 is a letter by Mr Redman to Melissa Haag of Fernandez Canda Gerkens, dated 25 February 2002
Exhibit A5 is a batch of reports as to counselling sessions in respect of the applicant
Exhibit A6 is a batch of (negative) drug reports concerning the applicant
Exhibit A7 is a letter dated 25 March 2002 by Liliana
Exhibit A8 is a (purported) statement by Ana Rascovici ("Ana") and Sretco Rascovici (who are the parents of Liliana).  (I use the word "purported" in this context simply because when Ana came to give evidence she denied that the signatures in respect of exhibit A8 were those of herself and her husband and considered that it is likely that those signatures had been forged by Liliana.)

(d) I note by way of preface that exhibit A1 and exhibit A7 are no more than brief letters by each of the applicant and his wife.  To call them statements by these persons as to the evidence to be given by them would be an exaggeration. 
(e) Exhibit A1 is in reality an apology; it reads as follows:

…
Your Honour, let me begin this letter by saying that I am very sorry for the offences which I have committed whilst in Australia.  I take full responsibility for these offences.  As you no doubt know from the other letters of support, I am presently in a serious and loving def-facto [sic] relationship with a woman whom I have grown to respect and cherish.  She is the mother of our baby son who is almost two years of age.  It goes without saying that I have let them down.  Instead of trying to build a stable and rock solid environment for them, I veered towards a life of crime.  However, having had ample time to reflect upon life, I have realised that my family must come first.  Please do not misunderstand me.  I have always considered my family to be important but I must admit that I have thought too much about myself at the same time.  Perhaps, through my selfishness, I have put myself first on far too many occasions.
Having said this, I understand that a deportation order has recently been made by the relevant Minister of Immigration.  I urge this Honourable Court, however, to place serious weight upon my personal circumstances and the process of rehabilitation that has occurred in my case.  In this connection, it is important to note that I have completed all relevant courses designed to address my offending behavior:  drug, stress and violence related courses.
If this Honourable Court does make a finding in my favor, I undertake to turn over a new leaf so to speak.  I am prepared to do almost anything to keep my family together.  I would like to re-enter the plastering industry.  Given my skills in this area, I am confident that I will be able to find work with relative ease.  All I desire is a chance to prove myself to the Australian community and, more importantly, my beautiful family.  

(f)       Exhibit A7 is, on analysis, no more than a plea by Liliana that the applicant should not be deported; it reads as follows:

…
This letter concerns my defacto husband's (Mr. Rascovici) immigration status.  He has recently been ordered by the relevant Minister of Immigration to be deported as soon as his present sentence of imprisonment expires.
I have known him for approximately 10 years.  We have a child who is presently nearly 2 years old.  I love my husband very much and I know that our child feels a similar (if not stronger) attachment to him.  It goes without saying that if he is ultimately deported back to Romania this is likely to have a devastating effect on both me and our child.  All of my family is here in Australia and they form an integral part of our support base.  In other words, I depend on their continued love and affection and they in turn depend on me as well.  My parents share a very close bond with our child.
I implore the relevant decision maker to take into account the above considerations when making a final determination in respect of my husband's deportation.  

(g)      I have no reason to doubt Ana's assertion in evidence that exhibit A8 was not prepared by her or by her husband.  Apart from any other considerations, its language is such that it is unlikely that this could be so.  Exhibit A8 reads as follows:

…
This letter concerns Mr. Grigore Rascovici who was recently informed by the Minister of Immigration that he is to be deported back to Romania because of his recent criminal convictions.  We have known Mr. Rascovici since 1992 - the date on which he became engaged to our daughter.  Importantly, they have a child of approximately 2 years of age.  Given his familial responsibilities, it is critically important that he be allowed to remain in this country.  It goes without saying that his son in particular will need his on-going support over the next few years.  His defacto wife also needs his continuing love and support.  If he is deported, his son and wife are likely to suffer irreparable damage.  It would mean that his son would most likely grow up without a father
Even though we must admit that we previously influenced our daughter to lay charges against him, we have now realised with the benefit of hindsight that "the decision to influence" was made without truly reflecting upon the matter.  We can honestly say that since then our respective opinion of him has taken a sharp turn.  Since their child was born, we have noticed that their relationship has been strengthened.  Indeed, they have become a truly loving and supportive family.  We reiterate that separating them at this stage of their lives would severely if not [sic] destroy their relationship and family.  We are willing to provide financial and emotional support to them upon his release should he require this support.  All we desire is that they be allowed an opportunity to remain together in Australia.
We were initially advised that it would be better for us to prepare individual letters of support.  However, we are fully conscious of the increasing demands on the court system and judiciary in general.  In consequence of this, we thought it prudent to provide simply one letter of support which is capable of encapsulating the essence of our continuing support for Mr. Rascovici.  Essentially, we hope he is given a second chance in which to redeem himself.
Should your [sic] require more information, please do not hesitate to contact us at the above mentioned address.

I note at this early stage that Liliana's father, Sretco Rascovici, elected not to give evidence before the Tribunal.  Having regard to the evidence before me by the applicant, Liliana and Ana as to drug trafficking by him, it is not at all surprising that this is so.

1. I intend in this clause, and in order to set the scene, and as I have done in the past, to reproduce a number of additional documents.
   (a)      The respondent's Statement of Facts and Contentions dated 21 March 2002 sets out the surrounding circumstances in some detail and includes a most helpful chronology of the applicant's criminal convictions.  It is set out in full in these Reasons as follows:
   13.10.94        Applicant arrived in Australia 
   9.11.94          Trafficking and possess in a drug of dependence (Cranbourne)     
   06.02.95        Theft [33] [38] [37]      
   16.02.95        Theft [36] [41] [40]      
   17.02.95        Theft [35]        
   24.04.95        Fails to answer bail    
   14.08.95        Convicted of theft, trafficking heroin, shoplifting, failing to answer bail, and possession – sentenced to 4 months concurrent on each charge and fined $1,200.00 [31, 32, 33, 34, 35, 36]   
   31.10.95        Applicant released from prison         
   06.02.96        Theft [30]        
   01.04.96        Trafficking in a drug of dependence [45]       
   26.07.96        Trafficking in/possesses drug of dependence [46, 47]        

31.07.96        Trafficking and process drug of dependence exceeds speed limit. [48, 49, 56]      
14.08.96        Trafficking in/process drug of dependence [50,51]   
21.08.96        Trafficking in/processes drug of dependence at [52,53]       
27.08.96        Trafficking in/processes drug of dependence (3/1 count) [42, 43, 54, 55]   
29.08.96        Possession drug of dependence [44]
13.11.96        Drives while disqualified and exceeds speed limit [57-58]   
04.12.96        Entered prison
14.12.96        Convicted of 7 counts trafficking, 6 counts possession, driving while disqualified and breach of suspended sentence.  Sentenced [sic] reduced on appeal to 11 months with suspended sentence of 14.8.95 reinstated and disqualified from obtaining driving licence for 12 months [37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53]
02.01.97        Advised of liability for deportation [72]         
29.08.97        Convicted of theft, sentenced to 3 months imprisonment [30]         
17.09.97        Judge Kelly converts unpaid fine of $500.00 to five days imprisonment [107]        
29.03.98        Released from prison
15.04.98        Commits the Deportable offence (intentionally causing serious injury).       
24.04.98        Entered prison
23.10.98        Convicted of intentionally causing serious injury (the Deportable Offence).  Sentenced to 27 months imprisonment with non parole period of 9 months. [22]  
30.10.98        Notified of liability for deportation [70].         
09.11.98        Submission by applicant regarding possible deportation [75-77]     
18.01.99        Released on parole    
13.04.99        Entered prison
13.07.99        Released from prison
13.11.99        Drives while disqualified exceeds speed limit          
09.02.00        Commits reckless conduct endangering serious injury        
17.02.00        Fails to attend parole appointment [87]        
24.03.00        Parole cancelled [87] 
27.06.00        Deportation Order [88]          
06.06.01        Entered prison
03.07.01        Convicted of reckless conduct endangering serious injury [Supp 117-127], sentenced to 12 months imprisonment
13.07.01        Appeals sentence      
08.01   Appeal against sentence dismissed  
(b)      As a matter of balance, the applicant's Statement of Facts and Contentions, date stamped 25 January 2002, is also set out in full in these Reasons as follows:

…
DECISION UNDER REVIEW
The applicant seeks review by the Tribunal of a decision made under s200 of the Migration Act 1958 ("the Act") on 27 June 2000 by Andrew Metcalfe, a delegate of the Minister responsible for the administration of the Act, ordering that the applicant be deported from Australia.
…
STATEMENT OF FACTS UPON WHICH THE APPLICANT RELIES

1.The applicant was born in Romania on 24 June 1974.

2.The applicant arrived in Australia on 13 October 1994.  He was 20 years of age at the time.

3.His family in Australia are:

Liliana Rascovici    (Defacto spouse)
Glisha Rascovici    (Son born 8 June 2000)
Ana Rascovici       (Mother-in-law)
Crescco Rascovici (Father-in-law)

4.The applicant met his defacto wife in Romania in 1992 and they were subsequently married in 1993.  Mr Versace first travelled to Australia in 1994 and has resided here with his wife and her family since that time.  Following an incident on 15 April 1998, Mr Versace was charged with intentionally causing serious injury to his wife.  The couple subsequently separated and were formally divorced in 1999.  Mr Versace and Ms Rascovici claim, however, that their separation and subsequent divorce was owing only to the constant problems with Ms Rascovici's parents.  Indeed, Ms Rascovici claims that it was her parents who pressured her into pressing charges against her husband after the incidents of 15 April 1998.  During their separation Ms Rascovici continued to visit the applicant in prison and remained in constant contact with him throughout this period.  Indeed, at the time of lodging the divorce in 1999 they were still in constant contact such that they attended to lodge the divorce papers together.  We are advised that they had been keeping their continued relationship from Ms Rascovici's parents until she fell pregnant with Mr Versace's child in mid-1999.  

5.In mid-1999 Ms Rascovici discovered that she was pregnant with the applicant's child.  It was at this time that the couple decided to officially reconcile and began living together again at Ms Rascovici's parents home.  It was in this context that Ms Rascovici's parents finally accepted the couple's relationship and offered support for their decision to re-unite.   

6.On 8 June 2000 the applicant's son, Glisha Rascovici, was born.  Since his son's birth Mr Versace has taken an avid interest in all facets of his upbringing.  He is described by his wife and close friends as a loving and caring father.  Ms Rascovici believes that her son would be deeply affected if Mr Versace was returned to Romania and he be forced to grow up without a father.

7.In June 2001 Mr Versace was returned to prison after he was involved in a motor vehicle accident in February 2000 which to lead to a charge of reckless conduct endangering serious injury.  Mr Versace was sentenced to 12 months imprisonment for this offence.

8.While in prison, Mr Versace has maintained constant contact with Ms Rascovici and his son Glisha.  Mr Versace and Ms Rascovici are planning to remarry as soon as permitted by prison authorities to do so while the applicant remains in prison or, alternatively, immediately upon his release.  The applicant is due to be released from prison in June/July this year.

9.Ms Rascovici believes that if the applicant were to be deported it would be her child and herself that would be punished and would suffer the most.  Ms Rascovici has been extremely supportive and believes that he is a wonderful father and companion.  She is committed to their relationship and building a secure future for their son and does not believes that, given a further opportunity, he will reoffend.

10.The applicant has the ongoing support of Ms Rascovici, her family and close friends in Australia which will be vital in his resettlement into the community upon release.

11.If his application is successful, the applicant intends to take an active part in his child's life and has expressed an intention to live a family oriented lifestyle and help secure his son's future.  In this regard we note that he has secured employment with a building company upon his release to enable him to support his young family. 

12.Ms Rascovici, the only known victim of Mr Versace's crimes, strongly opposes his deportation.  In this regard, we note that she has resided with Mr Versace for a period of almost 2 years since the incident and believes that Mr Versace is unlikely to reoffend.   

13.The applicant has proved himself to be polite, helpful and courteous to prison staff and other prisoners during his time spent in prison.   He has worked in a number of areas within the prison and appeared to be conscientious in his approach to work.  He has also taken an active and healthy role in prison life; undertaking a number of lifestyle and drug rehabilitation courses with a great deal of enthusiasm at the prospect of changing his life.

14.The conviction and sentence presently relied upon by the respondent under s201(a) of the Act was imposed by the Melbourne County Court on 1 July 1993. The applicant was convicted of intentionally causing serious injury to his wife for which he received a sentence of 27 months. The applicant was ordered to serve 9 months non-parole period and released from prison shortly thereafter.

CONTENTIONS
Australia's Criminal Deportation policy

1.The applicant understands that his case will be assessed with Australia's Criminal Deportation Policy regarded as a relevant consideration.  The fact remains that the policy is not a black and white document and allows for a significant number of competing considerations to be taken into account.

2.It is significant that, in the end, deportation is not mandatory under the Criminal Deportation Policy and the task of the decision-maker applying it is to make a value judgement about the applicant and his ability to change his lifestyle, build a future for himself and his family and become a useful citizen making a positive contribution to this community.  It is contended that the evidence before the Tribunal demonstrates his determination and capacity to achieve these ends.  Consideration must be given to a number of factors including protection of the community, the requirement to take into account the legitimate human rights of an individual and the need to protect the rights of other persons including the family of the applicant and any child who may be affected by the decision.

3.A most important item of the policy in this case is paragraph 8 which recognises Australia's obligations under international law.  One of those obligations falls under the United Nations Convention on the Rights of the Child.  In this respect, the Tribunal is referred to the Federal Court decision of Justice Wilcox in Davey Browne v Minister for Immigration and Multicultural Affairs (1998) 566 FCA (29 May 1998) in which his Honour considered the significance in matters of this kind of the United Nations Convention on the Rights of the Child which came into force on 2 September 1990 and was ratified by Australia with effect from 16 January 1991.  In particular, I would refer you to pp7-9 under the heading The Convention on the Rights of the Child and to p 12 where his Honour said-

"The deportation order was made in May 1995 by a delegate of the Minister against the background of the 1992 Criminal Deportation Policy….Dr Chappell (AAT Deputy President) (legitimately) regarded the terms of the policy as something relevant to his exercise of discretion; he specifically referred to some of them.  However, the Policy contained more than the terms referred to by Dr Chappell.  Paragraph 19 required (and promised) [as it does in the present case] that, in making a decision whether a deportation order should be issued, account would be taken, amongst other things, of "the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government."  Those treaties, in 1992 and in 1997, included the Convention on the Rights of the Child; and the obligations included the obligation, under Article 3.1 of that Convention, to make the best interests of the child "a primary consideration".  If the policy was relevant to the Tribunal's consideration of the extension of time application, as Dr Chapell thought, all its terms were relevant.  It follows that, leaving aside procedural fairness and the decision in Teoh, it was incumbent on Dr Chappell to consider, as substantive matters, the article 3.1 obligation and its appropriate effect on his decision."

And p 13-

"Many criminal deportation decisions do not affect children.  The Convention is, of course, irrelevant to such cases.  Where they do, there will ordinarily be a tension between the decision that is in the best interests of the child and the objective, stated in para 7 of the Policy, of protecting Australian society by deporting the offender.  How may this tension be resolved?  Not, I suggest, by allowing protection of Australian society automatically to trump the best interests of the child; to take that course is to reduce the best interests of the child from a primary consideration to a subsidiary one….A decision-maker confronted with two considerations, each of primary weight but pointing in opposite directions, may have a difficult task.  It will ordinarily be possible adequately to discharge that task only by detailed consideration of all the circumstances of the case."

The Child Convention was also the subject of consideration in William Tien & ors v Minister for Immigration & Multicultural Affairs [1998] 1552 FCA (3 December 1998).
In this case, it is uncertain at this stage if the applicant's defacto and son will be returning to Romania with the applicant should he be forced to return.  Were his child to do so, he would lose the substantial advantages available to him in Australia; better educational opportunity, lifestyle, healthy environment, future employment opportunity and risk of persecution for being the child of a criminal deportee.  His mother has indicated his attachment to his father and his need for the applicant to be there for him while he grows to maturity.  In the event that the applicant is not able to return to Romania with his son, the result of deportation in this case will be significant detriment to the child.  It is submitted that these harmful consequences are an important factor in the decision to be made by the Tribunal and a powerful factor militating against a decision to proceed to the making of a deportation order.  Not only are they an important factor, they are a primary factor in terms of the Ministerial Policy.  For example, if the Tribunal were to form the view that the applicant would continue to be a threat to the safety and welfare of the Australian community, that would not be the end of the matter.  It would still need to contemplate the welfare of the child as a primary consideration in its decision.  In the present case, the choice is not quite so stark.  There is probative evidence that the applicant is unlikely to reoffend and that he intends to live a family oriented life style with his wife and child.  When this is taken into account with the psychological and material damage the child will no doubt suffer from the deportation of his father, there is a compelling case for rejecting the deportation option.

The risk of recidivism

4.In the circumstances outlined above, it is contended that the risk of recidivism has been addressed by the applicant and is acceptable.  The way is therefore clear for the Tribunal to give enhanced weight to factors favouring the non-making of the deportation order.  The Tribunal is referred to the observations of Brennan J in Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100 where he said:

"Rehabilitation is never certain.  One cannot predicate of an offender that he will not fall again, whatever the circumstances.  The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk."

The applicant's prospective life in Romania

5.The applicant left Romania with his wife when he was only 20 years of age.  He has never left Australia since his arrival in 1994 and knows little of life as an adult in Romania.  The applicant now faces forcible return to his home country.  He will return there as a criminal deportee.  He will necessarily suffer unendurable loneliness and anguish.  He has little chance of obtaining worthwhile employment.  While he does have his parents in Romania, he has had little contact with them since his departure in 1994.  Further, their circumstances are such that they will be able to do little to assist him.

Adverse consequences for other Australian citizens and residents

6.There is no suggestion that any member of the community has supported or sought the applicant's deportation.  Conversely, his wife and child sincerely oppose his proposed removal.  The applicant's child will be traumatised and punished/penalised if the decision is to deport.  It is clear that the applicant's child loves his father and wants him in his life.  The child is an Australian citizen, innocent of any wrong-doing and, as a matter of law, his welfare and interests are a primary consideration.

Effect of deportation as a deterrent to others

7.It is submitted that there is no evidence that the applicant's deportation will prevent or inhibit the commission of like offences by other persons.  The deterrent aspect has already been employed by means of a sentence which indicates to people who may be so inclined that they will be sentenced to significant periods of imprisonment.

Conclusion
It is contended that, of all the judicial or quasi-judicial functions performed by courts and tribunals in this country, the decision to deport is the most devastating. Where the applicant has been in Australia for a significant time and has long term family ties, the decision amounts to a destruction not only of his or her life but also that of the family members. Where there are children involved, this is little short of catastrophic. There are a plethora of judicial authorities in relation generally to the issues raised by deportation under the provisions of the Migration Act 1958. I do not propose to canvass those authorities because all they say in the end is that decision-makers must exercise a value judgement which takes account of the circumstances surrounding the case, the law and, as a general rule, the various considerations set out in the Ministerial policy.
It is conceded that the Tribunal's task in this case is not an easy one.  It is contended, however, that the risk of the [sic] Mr Versace re-offending is acceptable.  It is further contended that a primary and very significant factor for consideration is the traumatic effect deportation would have on the life, psychological health and prospects of his child, Glisha.  This would be the result whether Mr Versace returned to Romania with or without his child. 
The evidence discloses that, if the deportation order is not made, Mr Versace will have the social, physical and emotional support of his defacto wife, child, family and friends.  It is submitted that, when all the circumstances surrounding the case are taken into account, the balance falls in favour of allowing Mr Versace to remain in Australia.

(c)       Exhibit A2 is Mr Redman's psychological survey in respect of the applicant, it reads as follows:

…
Relevant Background
Versace was born in Timisoara in Romania. The town is within 150 kilometres of Belgrade in Yugoslavia and in the northwestern part of Romania.  He was the second eldest of four children, of whom the eldest is the only daughter.  His father had worked in the building industry and his parents still reside in the above named city.  Versace stated that his schooling had been satisfactory and when he had left, he went into commercial work.  He indicated he had moved around as a clothing sales representative at various markets.  He indicated that in his youth, he enjoyed soccer and table tennis. He also occasionally assisted in the building industry.
When on holidays in Romania in 1992, Ms Rascovici met Versace.  She was an Australian citizen at the time.  They were married in Romania early in 1993.  They came to Australia in 1994 because Ms Rascovici believed there was a better future here.  Versace did not speak English until he came to live at Cranbourne, near Melbourne. When he first arrived, he did asparagus picking, plastering and worked in construction.  He has had a driver's licence since 1995.
Mr Versace indicated that in October 1996, he had his first prison sentence of eleven months, which was for drug trafficking and shoplifting.  He indicated that he thought it was not his fault.  He stated that his father-in-law gave him a plastic box and an envelope to deliver.  He was caught with the package that contained drugs by an undercover police officer.  Mr Versace stated that he had never used drugs.  He indicated that he was angry with his wife's parents in relation to the above.  He considered they had used him.
Mr Versace stated that once in 1997, he had been intoxicated with grappa, a homemade whisky at the time his wife's arm was broken.  He indicated that two weeks later, her parents had charges made against him.  He was then put in remand for six months and later gaoled for three months.
On release in 1998, he went to Dandenong, working in plastering and living with Romanian friends.  He played soccer on a casual basis. At the time, he met a divorced Croatian woman who had children.  He stayed with her for "a few months" having initiated a divorce from his wife.
His ex-wife claimed that when she broke up with him she had made a mistake and in late 1999, she sought his company again.  She stated that she had separated from her husband because her parents had disliked him.  The Croation [sic] woman had not been very happy when Versace had left her.
In 2000, whilst driving his Ford Fairlane near a soccer field, Versace saw a car coming towards him.  The Croation [sic] woman, with whom he had had a relationship, was driving the other car.  He indicated he could not stop at the time and had a head on collision in which no one was injured.  Police attended the accident at the time.  He was subsequently charged one year after the accident with reckless driving and given a one-year sentence from 20th June 2001, which he is currently serving.  He currently believed that he would be given parole within five months.
When his former wife resumed contact with him in mid 1999, their son, Glisha was conceived.  Versace indicated he was present at his son's birth on 8th June 2000.  While in prison, Versace has been doing courses in stress management, in relation to drug and alcohol abuse.
Psychological Assessment
When interviewed at the prison, Versace presented neatly in a prison uniform, well groomed and clean-shaven.  He was cooperative and polite and able to relate his personal history, although he needed to be questioned in a careful, literal manner due to English being his second language.  He was informed of the purpose of the assessment and the need for factual information.
The prison officer stated that he had been quiet in prison and was sociable with people of his own nationality with whom he was incarcerated.  When being interviewed, Versace had difficulty providing specific details and tended to generalise.  There appeared to be a passive resistance although it was indicated to him that having as much information as possible in relation to his history and behaviour would be helpful for him.
When discussing his background, Versace indicated that he did not normally drink alcohol very often.  When provided with the Drinking Behaviour Alcohol Life Problems, he indicated that he was normal drinker and that he could always stop drinking whenever he wanted.  He did, however, admit that he had sometimes woken in the morning and had not remembered what he had done the night before after drinking.  He believed he did not need help in relation to drinking alcohol.  He was somewhat impatient about the questions in relation to drinking and did not believe that drinking made him more aggressive.  He stated that he avoided getting angry.  He did not believe that he had been aggressive in relation to the incident with his wife's broken arm and that it had been an accident.  He believed that his ex-girlfriend had exaggerated that he was violent.
In the assessment, he stated that he did not have any feelings of anxiety, nor did he drink because of a need to escape to [sic] problems.  He presented as somewhat satisfied with himself and was eager to re-unite with his former wife and child.  He also wished to enter into the building industry as a worker.  He was dismayed that he was sent to gaol because of the accident with the car.  He stated that the police had attended at the time, and he believed that it was a genuine accident on his part.  He also believed that his former wife's parents had put pressure on her to press charges in relation to her broken arm.
The Personality Assessment Screener (PAS) was administered.  Although he appeared to gloss over many issues when administered the PAS he indicated that he was sometimes a "take charge" kind of person.  Also, he admitted that at times he had done things that were [sic] weren't exactly legal.  He also felt that sometimes people around him were not faithful to him.  He also indicated that it took a lot to make him angry.  He found it difficult to make friends easily.  As a result, he showed that he was a mild risk in terms of acting out that is, impulsively.  Furthermore, he tended to be slightly alienated from others and at risk for [sic] social withdrawal, as discussed below.  He denied any alcohol, nor aggression problems.  He indicated that people did not view him as being aggressive.  The prison officer confirmed that Versace was a quiet, unassuming man whom kept company with prisoners of his own nationality.
The impression was that he was self confident and somewhat uncomfortable about being asked personal questions.  He was also eager to move on from discussing the past situations.  From the interview, it was difficult to ascertain his future prospect as a risk in terms of violence and imprisonment.  His slightly condescending behaviour appeared to indicate that he felt that he was in the right and there had been some injustice made against him.  Certainly, in the context of prison, the prison officer did not appear to be fully aware of his current personal history because he generalised that a woman had come to the prison to marry him, but the authorities did not grant permission.  Versace's attitude could be interpreted as mistrust of people in authority due to his experiences so far in Australia.  His mistrust may be overcome by reducing segregation and in having him involved in the community through appropriate organisations such as Migrant Resource Centres.  Such incorporation into the community would also help him reduce isolation and the likelihood of acting out behaviour.
Opinion
Versace, as indicated, presented as a retiring, quiet man who when married, took on his wife's maiden name.  Staying within his own community, Versace has tended to limit his adjustment to living in Australia.  Other factors such as the animosity of his former wife now defacto's parents, also influenced the progress of his adjustment.  Now that he has a son and his defacto's parents are, according to her, eager for him to say [sic] with her in Australia, he has the potential to integrate better into the community.  The Spousal Assault Risk Assessment Guide (SARA) in relation to Versace showed low scores based on his and her defacto's information.  He claims not to have knowingly assaulted his defacto, nor strangers.  He claimed that his own family were not violent.  Apart from smoking five to eight cigarettes daily, he asserted that he had no substance abuses, nor dependence.  He had no suicidal, nor homicidal ideations, nor intents. In addition, his personality appeared normal to his custodial prison staff.  Although there appeared to be some minimisation of spousal assault history by both he and his defacto, he did not condone nor support spousal assault.
Integration into the community as an intact family was the mutual aim of both Versace and his defacto, Rascovici.  Support services through community health services, early childhood parenting programs and migrant resource centres would greatly assist the autonomy of the couple to prevent excessive dependence on the Rascovici's parents which in the past may have led to problems in their relationship. Her parents may also need special assistance for themselves.
Based on the information provided to me, I recommend that Versace stay in Australia with his defacto and son.  Apart from assisting her due to her own need for emotional support, his presence could stabilise the future of their son, especially if they become a more independently functioning family unit.  Furthermore, Versace has more motivation and incentive to not re-offend with his new responsibilities as father and supporting husband, which he has stated.

3(a)     Although the applicant gave evidence first, Mr Gerkens applied, prior to the completion of his evidence-in-chief, for the evidence of Mr Redman (who gave evidence by telephone) to be interposed.

(b)Thereafter, and after completion of the applicant's examination-in-chief, but before his cross-examination could commence, Mr Gerkens applied for the evidence of Liliana to be interposed because, and in respect of the second day of hearing, her presence was required elsewhere to answer a shoplifting charge.

(c)I intend to deal with the evidence of the applicant later in these Reasons and not piecemeal, and notwithstanding that his evidence was given, so-to-speak, in three tranches.

1. There are a few matters which might conveniently be mentioned by way of preface.
   (a)      Each of the applicant and Liliana referred to each other in terms which suggested that they are married to each other.  As I said previously in these Reasons, they were divorced in 1998 or 1999.  (Liliana was not sure when exactly the divorce took place.)  It is convenient, however, to refer to them in the terms chosen by them.  Again, as set out previously, the Tribunal has no reason to doubt that they do intend at some point in the future to remarry.
   (b)      The T documents refer to the applicant under different names.  It appears that his original name was "Radu", that he took the name of "Rascovici" when he married Liliana and that, subsequently and by two deeds, he changed his name first back to "Radu" and then later to "Versace".  The applicant was asked for an explanation as to why he changed his name in this fashion but he did not offer any reasons.
   (c)      An interpreter in the Romanian language was available for the applicant, Liliana and also for Ana.  It became clear that the applicant needed virtually no assistance.  However, the services of the interpreter were needed in respect of the evidence of Liliana.  She said that, although she had been in Australia since 1989 and although she has worked on a farm (picking asparagus) and in a plastics factory, her English remains poor.  The Tribunal agrees that her English is probably poor but doubts that it is as poor as she sought to suggest; on occasions she answered in English without waiting for the interpreter.  Ana's English is poor although she too answered on one or two occasions in English and she certainly needed the services of the interpreter.  This is a convenient juncture at which to note that the services of the interpreter who assisted in this matter were perfectly competent, notwithstanding interruptions from the back of the hearing room to the effect that the interpreter was not interpreting correctly.  There were, indeed, three interruptions from the back of the hearing room, but they were dealt with adequately and I do not need to refer to them further.
   5(a)     It may be said by way of overall comment in respect of Mr Redman's  evidence, that he was handicapped because, as became clear, he was not always informed as to the truth by the applicant or by Liliana.  At the same time, it must also be said that Mr Redman might perhaps have made further inquiries as to aspects of which he was, understandably enough, uncertain.

(b)The text of exhibit A2 has been set out previously in these Reasons and can be referred to in the context of this clause 5.  I do not think it necessary to set out in full Mr Redman's psychological report in respect of Liliana, although, but perhaps to a lesser extent, it suffered from precisely the same defects. 

(c)As will be noted, Mr Redman referred to the "accident" involving the "Croatian woman" who is Maria Sava (and who is referred to in these Reasons as "Sava") and noted that he had been told that it was a genuine accident.  I refer in this context to his statement, under the hearing "Psychological Assessment",

… He was dismayed that he was sent to gaol because of the accident with the car.  He stated that the police had attended at the time, and he believed that it was a genuine accident on his part.  He also believed that his former wife's parents had put pressure on her to press charges in relation to her broken arm.  

Mr Redman noted also that he was surprised at the fact that a motor accident in which no one was injured could have resulted in a period of imprisonment.  In fact, and as will appear later in these Reasons, the incident involving Sava was by no means an accident in the commonly-accepted sense of that term, but rather an attack on Sava; it is referred to in these Reasons in brief as "the Sava assault".

(d)Mr Redman was also told by the applicant that "… he did not believe that he had been aggressive in relation to the incident with his wife's broken arm and that it had been an accident".

(e)Mr Redman noted that the applicant presented as self-satisfied with himself; he noted also that he glossed over many issues.  He noted furthermore that the applicant admitted that at times he had done things that "… weren't exactly legal". 

(f)Mr Redman noted furthermore that the applicant was

… self confident and somewhat uncomfortable about being asked personal questions.  He was also eager to move on from discussing the past situations.  From the interview, it was difficult to ascertain his future prospect as a risk in terms of violence and imprisonment.  His slightly condescending behaviour appeared to indicate that he felt that he was in the right and there had been some injustice made against him.   

(g)      In relation to Liliana, Mr Redman noted that she found it difficult to relate to past events.  She had informed Mr Redman that she broke her arm accidentally.  She said furthermore that she instigated the divorce against the applicant because "her parents disliked him".
(h)      As a general assessment, it appears to the Tribunal that Mr Redman's assessments are not particularly helpful; he was misled by the applicant and Liliana as to important matters.  It is perhaps fair to say that he did not have enough time with them, and, as I have said, perhaps did not make sufficient enquiries.  He does not appear to have been told the full extent of the applicant's lengthy criminal history.  Mr Redman did refer to a drinking problem in relation to the applicant but not in any detailed terms.  It may be that, if Mr Redman had had more time with the applicant and Liliana and if they had told him the truth as to the matters to which I have referred, his reports would have been more helpful.  As matters stand however, his evidence must, of necessity, be discounted to a considerable extent.

1. It may be noted at this juncture that the applicant in his evidence admitted that he had not told Mr Redman the truth.
   6(a)     Liliana came to Australia in 1989.  She had been at school in Romania but did not complete high school.  She had worked in Australia as part of a team of pickers at an asparagus farm; she said that her team of pickers were mainly Romanians or Serbians who spoke to her in a language she could understand.  At a plastics factory where she worked for a period, her supervisor was her sister-in-law who apparently spoke to her in Romanian.  It seems that, for lengthy periods, she has drawn social security.

(b)Liliana's evidence as regards her parents was in general often very contradictory.  She married the applicant in Romania in 1993 and the applicant came to Australia in 1994.  She said, at an early stage of her evidence, that she and the applicant and the baby first lived with her parents for about one year after the birth of the baby son, Glisha, in June 2000.  However, she gave evidence as to other and quite extended periods of residence with her parents before the baby was born; prior to the birth of the baby, the pattern appears to have involved periods of residence apart from her parents punctuated by returns to her parents' home whenever she and the applicant ran out of money.  As pickers at an asparagus farm, their earnings were not large.

(c)Liliana said that her parents very much disliked her husband at least until the baby was born, when at last they accepted, so she said, that he could be a devoted husband and father.

(d)Liliana blames her parents, particularly her father, for many of the difficulties which have arisen.  It was her father, according to her, who initially forced her husband into trafficking in heroin.  After the assault on her (described by his Honour Judge Jones as "cowardly" and "a nasty incident"), it was they who insisted on a prosecution and it was they who somehow were able to force her to divorce her husband.  (Mr Redman was told that the applicant initiated the divorce proceedings; this is not so; it was she, Liliana, according to Liliana, who brought the proceedings although her parents paid the legal costs involved.)  It may be noted that Ana, when she came to give evidence, denied that she and her husband paid the legal costs and, indeed, denied that there had ever been a divorce. 

(e)Liliana also tended to make light of the applicant's assault on her.  She said at one stage that there had only been one assault on her; she later admitted that he had hit her on a number of occasions previously.  She said, though, that the previous assaults involved her being "slapped" on the basis that this was no more than behaviour which ordinarily occurred in marriage.

(f)After the applicant was released from gaol, at the end of his second period of imprisonment (lasting 11 months), he went to live with Sava, a Croatian woman who has four young children.  However, and at the same time, Liliana was still seeing and sleeping with the applicant and became pregnant by him in September 1999, resulting in the birth of her son Glisha (referred to as "Glisha") in June 2000.  Liliana said that she entirely forgave the applicant because she loved him. 

(g)Liliana has a history of shoplifting which relates to periods prior to her marriage and to periods after her marriage.  She said that her husband's first theft conviction related to goods stolen by her and that he accepted responsibility in order to shield her.  She said that she was also responsible for a subsequent conviction in respect of the theft of lingerie, so that, in effect, she was in reality responsible for two of his theft convictions.  Liliana said that stress and depression had led her into gambling which had, in turn, led her into repeated shoplifting. 

(h)Liliana, when asked to consider the possibility of life in Romania with the applicant if this decision should go against the applicant, said that she had not thought about it and refused to think about it.  When pressed to answer she said that she was not prepared to answer any further questions on this aspect.  (The Tribunal doubts whether this is an aspect which has not, at least, been considered by Liliana.)  Liliana said that she is a gypsy; the applicant had said that he is a gypsy and that Liliana became a gypsy but only by virtue of her marriage to him.  Liliana felt that life in Romania would be difficult because the standard of living there is not as good as it is in Australia.

1. Liliana and her child receive social security; so, too, did the applicant for a period or periods prior to his gaol sentences.

(j)Liliana was in general terms vague about dates and periods.  She could not remember important dates such as, for example, the date of her divorce.  She was cross-examined at some length as to the applicant's first drug offence which occurred 27 days after his arrival in Australia.  Her answers to these and other questions were untruthful and evasive.  As to his drug activities generally, she attributed his problems to her father and, in any event, said that she did not wish to know about them.

(k)Liliana's attitude to her father is even more contradictory.  It seems clear that he has been generous; he has provided free board and lodging for extensive periods on more than one occasion.  As I have said, the pattern would appear to be one of independent existence, followed by a return to her parents when Liliana and the applicant ran out of money.  Moreover and since the birth of the child, her parents have warmed to the applicant.  Nevertheless, her attitude is that, if the applicant is allowed to remain in Australia, all ties with her father will be cut completely.

(l)Liliana's evidence as to certain insurance money, referrable to a damaged motor car, was as contradictory and evasive as any of the remainder of her evidence.  It was put to her that she received the insurance proceeds in respect of the applicant's car damaged in connection with the Sava assault.  After a number of evasive answers, she eventually admitted that she received some money in respect of a car, but, so she said, a different car which she had bought after the Sava assault, and with a loan provided by her brother.  There was no evidence before the Tribunal as to any loan by her brother. 

(m)Liliana testified as to a close relationship between the applicant and Glisha, even though Glisha was one year old when his father went to prison for the third time.  She said that she had taken the child to see his father periodically while in gaol.

1. The evidence of Ana was remarkable, in particular, because it was so inconsistent in relation to the evidence of her daughter and the applicant.  In this regard:

   (a)She denied, as I have said, knowing anything about or signing exhibit A8 and said that her husband, to whom she had been married for 36 years, had not signed it either.  As I have indicated, the language of exhibit A8 is unlikely to be her work.  As to who prepared and signed exhibit A8 is uncertain; but Ana thought that Liliana had forged the signatures of her parents.  Mr Gerkens from the Bar table informed the Tribunal that exhibit A8 had not been prepared in his office, and of course I accept that assurance by him.

   (b)Ana did not accept that there had ever been a breach between the applicant and her and her husband.  She did agree, though, that her husband had been responsible at least for the applicant's first heroin trafficking conviction.

   (c)Ana denied that she and her husband had instigated or paid for the divorce of Liliana from the applicant; indeed, and as I have said, she denied that there had ever been a divorce.

   (d)Ana did not attend the wedding.  It may be noted that his Honour, Judge Jones (at T p.60) said that it was an arranged marriage.  Ana said that Liliana had gone to Romania specifically to look for a husband.

   (e)Ana knew, after the Sava assault, that the police were looking for the applicant.  She said that she had advised him when he was in hiding that he would be best advised to go to the police.  Reverting to the divorce, Ana agreed that she had suggested a divorce but had not pressed it and did not know of the divorce.

   (f)It must be accepted that Ana found herself in a difficult position.  She, the applicant and Liliana all gave evidence as to drug trafficking activities on the part of her husband, who, as I have indicated, refused to give evidence before the Tribunal.

8(a)     This brings me to the evidence of the applicant.  Before dealing with his evidence, it is necessary to refer to certain of the T documents. 

(b)I refer in the first instance to T page 60 to T page 69 which sets out the sentencing remarks of his Honour Judge Jones, and which reads as follows:

Grigory Radu, you have pleaded guilty to one count of intentionally causing serious injury.  In sentencing you for this offence the court has regard to the maximum penalty for it which is 15 years' imprisonment.  It is my task as the sentencing judge in your case to determine the appropriate penalty and sentence for this offence having regard to the circumstances of the case.
I first turn to the circumstances of the offence.  It occurred on 15 April 1998 at the home at which you and your wife Lilina Ruskevic were living.  She is the victim in this matter.  You are aged 24 and you married her in Romania in February 1993.  It was an arranged marriage and you had known her for only a very short period.  She had lived in Australia and had returned to Romania to find a suitable partner for marriage. 
You both came to Australia in October 1994.  Her parents live here but you have no family here. It is apparent, and I accept, that there were difficulties in the relationship between you and your wife and it could fairly be described as a turbulent relationship.  At the time of the commission of this offence you had recently been released from prison after spending 16 months there in relation to drug offences. 
I mention these matters before dealing specifically with the incident as it is necessary that the incident and the offence be placed in context.  On 15 April you and your wife visited some friends.  There you played a card game and consumed alcohol.  It is clear that on your returning home in the evening you were affected by the alcohol that you had consumed.  You then proceeded to consume more alcohol after returning home.  Your wife did not wish you to continue to drink but you did so.
During the course of the evening you became angry and violent towards your wife. You grabbed her by the hair and dragged her into the living room.  There you punched her in the face, hitting her a number of times.  You also kicked her as well as hitting her and were yelling and screaming at her.  She believes, and I can accept that she believes, that this went on for what appeared to be quite a long time, that is, what only can be described as a cowardly beating. 
Eventually she noticed that it was early in the morning and also noticed that she had pain in her left arm and believed it could be broken.  You both went to bed but later she rang a friend and asked that friend if she would come and pick her up and take her to hospital.  That friend did attend.  She said that when she spoke to your wife on the phone she was crying hysterically.  When she attended she could see that your wife had bruising of the face, her right hand was swollen and bruised and she was very upset and continually crying.  She was taken to hospital and a report has been tendered to the court, through the depositions, of the Dandenong hospital.
On examination, your wife was found to have a swollen painful left forearm with reduced range of movement.  She was found to have a fracture of the ulnar.  There was redness and bruising above the right eye and temple.  There was tenderness and redness on the right side of the back in the thoracic region and there was swelling and bruising on the right hand.
She was referred to a social worker for counselling and an appointment was made for her to be reviewed at a fracture clinic because of the fracture of the ulnar.  I have seen photographs that were taken at about the time of this incident occurring which give some indication of her injuries.
I have been informed by the prosecutor that your wife has indicated that she does not wish to provide a victim impact statement to the court.  I have been informed that she has recovered physically from the injuries that she sustained in this assault and it would seem to me that that is consistent with the nature of the injuries she sustained.  Nevertheless, this would have been a frightening and distressing experience for her to be beaten in her own home in the way that she was.
I move to your personal circumstances, background and character which your counsel, Mr Lyon, has reviewed for the court.  Evidence has been given to the court on your behalf by Mr Jeffrey Cummins, a consultant psychologist.  A report from Mr Cummins has been tendered and certificates of courses that you have carried out at Port Phillip Prison whilst you have been in custody on remand have been tendered.
With respect to your personal history, put briefly as I have said, you are aged 24 years of age having been born in Romania.  As I have indicated, you were married to your wife in Romania in 1993 and this was an arranged marriage. I have referred to how you came to Australia with your wife.  Your parents have always resided in Romania and it is apparent that you have maintained contact with them.  You also have siblings in Romania.  You have never returned to Romania but have remained in Australia.  Your schooling took place in Romania and in your last year of schooling you did some training as an accountant.
On coming to Australia you did not have family here and I accept that this meant that you were dependant, as far as social contact, on your wife's family.  You had a period of employment for a while but otherwise have been unemployed.  Mr Cummins has referred to your history in relation to alcohol.  It is clear and I accept that on this particular evening you were intoxicated.  Mr Cummins is of the view, on the basis of the history that he was ultimately able to obtain from you, that you have an alcohol problem which needs to be monitored and appropriate action taken as required.
He has assessed you as a person who has no psychiatric or psychological problems but a dependant personality.  He is of the view that it is appropriate and prudent that there be supervision of you to ensure that there is no relapse into problems with alcohol or violence, as anger, particularly associated with alcohol, seems to be a problem.
You do have a history of prior offending.  In August 1995 you received a sentence of 4 months' imprisonment for drug and related charges which included trafficking in heroine.  In December 1996 you were initially dealt with by the Magistrates Court for drug offences including trafficking in heroine and received a sentence of 3 years' imprisonment.  On appeal the County Court sentenced you to 11 months' imprisonment additional to the period that you had already spent in custody.  As I have said you were released not long before this incident occurred and the result is that prior to your release you had spent 16 months in custody.  That is a matter that I take into account in determining a sentence in this case and particularly in considering an appropriate minimum term.
I have been informed by your counsel, and it seems clear on the material, that the relationship between you and your wife is now finished and that is a position accepted by her as well as yourself.  I would have to say in view of the circumstances that are involved with this incident, it would be in her best interests and your best interests for the relationship to cease and for you to make your way independently of her and her family.
I have been informed that you wish to stay in Australia rather than return to Romania because you believe that this country offers you more opportunities than you would have there.  You have an offer of accommodation when you are released to live in St Albans with a family who know your parents.  This would certainly have the advantage of removing you from the Dandenong area where the drug offending took place and your in-laws, of course, reside in that area.
You have pleaded guilty to this offence and I believe that your plea of guilty is accompanied by remorse.  The plea has meant that it has not been necessary for your wife to go through the trauma of having to give evidence in court and it is a substantial factor that the court takes into account in your favour.

The certificates that your counsel has tendered from Port Phillip Prison indicate that you have taken advantage of all opportunities available to you, whilst in prison, to participate in courses and improve your situation.  That is to your credit and indicates that you are motivated, as far as your rehabilitation is concerned.
I would like to put on record something that I said during the course of the plea and that is that it is pleasing to see the programs that are being made available by Port Phillip Prison for people who are held in custody there, whether they be remand prisoners or prisoners serving a sentence. 
It is necessary to return briefly to this offence and consider its nature and gravity.  It is an offence of some considerable gravity.  This was a nasty incident and involved you inflicting serious injury upon your wife through a cowardly beating.  It must have been a frightening and distressing experience for her to be attacked and assaulted as she was in her own home.  As I have said, she has made a complete recovery from the physical injuries that she has received but she has been subjected to a traumatic and frightening experience which she will not easily forget.
The fact that you were married to her and the offence occurred in the context of that relationship which I accept, as I have said, was turbulent cannot lessen the seriousness of this offence.  Women in the position of your wife are entitled to the full protection of the law.  Attacks such as this upon them cannot be tolerated and are deplored.
It is clear that you were intoxicated at the time and it seems apparent became very angry and lost control.  These are matters that I take into account in assessing your culpability for this offence.  In saying that I point out that they do not in any way excuse your actions or justify them but do help to explain why you acted as you did on this particular occasion.
I turn to the purposes for which sentence should be imposed in your case and what is an appropriate sentence.  In imposing sentence I consider some weight has to be given to specific deterrence.  You have to understand that behaviour such as this is totally unacceptable and you have to control your anger and avoid situations where you are intoxicated.  Emphasis needs to be given to general deterrence in sentencing you for this offence.  The community is rightly concerned about violence against women in domestic situations.  Men who might be minded to be violent in such circumstances need to be deterred.
The sentence imposed by the court also needs to manifest the denunciation by the court on behalf of the community of the conduct that is involved and act as a just punishment for it.  As I have said, the community deplores violence against women and expects that such conduct will be strongly denounced and justly punished in sentences passed by the courts.  However, the court also takes into account your personal circumstances, background and character and the mitigating factors to which I have referred.  This includes your rehabilitation.
I believe that with appropriate support and assistance your prospects of rehabilitation are good, notwithstanding your prior history of involvement with drugs and the difficulties that you have experienced with alcohol.  It would appear that you have some insight into your situation and with appropriate supervision and guidance there is no reason why you should not be able to be a worthwhile member of the Australian community.
The determination of a minimum term, in this case, in relation to the sentence can, in particular, reflect the weight given to rehabilitation.  The sentence therefore that the court considers appropriate is as follows and in determining the sentence, as I have said, account is taken of the fact that you had previously served 16 months in prison.  Although this offence occurred after you were released, it is appropriate to take that period into account.
The sentence of the court is that you are convicted of the offence of intentionally causing serious injury and sentenced to 2 years and 3 months' imprisonment.  The court has to consider an appropriate minimum term.  Your counsel mentioned the possibility of partial suspension but in my view the appropriate course is a minimum term because it offers the opportunity of parole and supervision and assistance on parole.
It is appropriate for the period of parole to be relatively long to give full scope to assistance from the Parole Board and it is of particular significance to take into account the 16 months that you had previously served in prison when considering a minimum term.  I have reached the conclusion that an appropriate minimum term in your case is 9 months' imprisonment.  That will have meant, when one takes into account the previous 16 months that you will have spent almost continually 25 months in prison before then being subject to parole.  I consider in the circumstances therefore a minimum term of 9 months to be fair and just and to not undermine the effectiveness of the sentence imposed by the court.
The court will provide to the Parole Board its reasons for sentence and the material such as the report of Mr Cummins so that the Parole Board can give consideration to appropriate conditions.  I will certainly recommend to the Parole Board that it give consideration to providing for assistance in relation to your situation with alcohol when you are paroled to avoid a situation occurring again where violence occurs in the context of intoxication.
I declare that you have spent 185 days in custody.  That period has not been taken into account in determining the sentence and is deemed to be time already served under the sentence imposed.  An application has been made by the prosecution for the provision by you of a forensic sample pursuant to s.464ZF of the Crimes Act.  I am informed that you do not oppose that application.  It can be made because the offence of intentionally causing serious injury is an offence to which that provision relates.
In hearing an application the court has to take into account the seriousness of the circumstances of the offence and also be satisfied that in all the circumstances the making of the order is justified.  I am satisfied, applying the tests under the section, that it is appropriate that such an order be made and it is made.  I point out to you, as I am required to do, that a member of the police force may use reasonable force to enable the procedure to be conducted although I do not expect in the circumstances that there will be any problem about the samples being obtained in view of the position that you have taken with respect to the order.

(c)      His Honour Judge Jones noted that the relationship between the applicant and Liliana was over; I refer in this context to his sentencing remarks.  It is possible that his Honour was, in this regard, mistaken or misled.

(c)In his sentencing remarks, his Honour Judge Jones referred to the applicant's alcohol problem.  His Honour also believed that "… your plea of guilty is accompanied by remorse".  The Judge may also have been misled as to the question of remorse.  On 9 February 1998 and in answer to a notice that the respondent was considering deportation, the applicant wrote to Ms Shuk Ling-Wo (Tp.75); that letter is set out in these Reasons as follows:

…
Since 13 October 1994, I have been registered with your department as Mr Grigore Rascovici.  I was born on 24 June 1974 which effectively means that I am 24 years of age.  In late October 1996, I changed my name through deedpol to Mr Gregory RADU.
On 23 October 1998, I pleaded guilty to one count of intentionally causing serious injury.  I received a total effective sentence of imprisonment of 27 months with a minimum non-parole term of 9 months.  In my respectful opinion, my plea of guilty demonstrates my deep regret and high level of remorse for what I did.
Before making any decision with respect to my deportation, I implore you to carefully consider the following factors:

It is vitally important that the incident involving my estranged wife and myself is put in context as it appears to have been blown all out of proportion.  Although I pleaded guilty to intentionally causing her serious injury, it should be pointed out that in my intoxicated state I did not foresee that she would suffer serious injury.  I instructed my defence team that it was purely accidental.  I distinctly recall my wife and I drinking alcohol on the night in question.  The next thing I remember is arguing with her.  I am not and have never been a violent person.  I do recall slapping her once.  I think she fell down and that must have caused the injury to her.  I am extremely remorseful for

(f)       It must be noted, in particular, that there have been three separate periods of imprisonment in respect of the applicant.  As set out in the chronology, which forms part of the respondent's Statement of Facts and Contentions, the applicant first went to prison for 4 months in August 1995.  In December 1996, he went to prison for 11 months having been convicted of a number of offences.  His sentence of 3 years was reduced on appeal to 11 months, more particularly because the County Court decided that he should not be sentenced both for possession and for trafficking.  It was in these circumstances that the respondent, because of the sentence reduction, could no longer continue with the proposed deportation of the applicant.  The applicant was aware of the fact that his deportation was being considered.
(g)      The deportable offence is the assault on Liliana, which was committed in April 1998.  The applicant was released on parole in January 1999.
(h)      In February 2000, the applicant committed the Sava assault, referred to more fully later in these Reasons.  He did not report the matter, breached his parole terms and went underground for more than a year, before he was discovered, and resulting in a prison sentence of one year in July 2001.  It is relevant that the applicant knew at the time that the respondent was considering his deportation.

1. T page 103 is a minute by the Department of Immigration and Multicultural Affairs; the third paragraph of that Minute reads as follows:

   …
   Mr Versace (then Rascovici) was a regular supplier to a heroin dealer in Frankston North.
   Once a day he would supply her with heroin.
   He was caught leaving her place, and found to have a small amount of heroin on him, and some cash.  

(j)        T page 118 is part of a statement by Sava, which reads as follows:

…
My full name is Mary Marica SAVA. I am 34 years of age and reside at the above address.  I have four children Suzana [sic] who is 3 and Fabian who is 6, Michael who is 7 and John who is 14.  Last year in march I started seeing a man named Glisha VERSACI.  We had a relationship for about 1 month and then he was arrested by Police for something that had happened before.  Glisha went to jail for 3 months.  When he got out it was 15th of July 1999.  Glisha came back to my house and moved in, I thought it was just going to be until he found he found [sic] his own place.  After about 3 weeks I know he began to see his ex wife.  When I found this out I ended the relationship and told him to leave me alone.
Glisha would not move out and told me that if I got Police involved he would kill me.  I know that Glisha was doing bad things he is involved in selling drugs, I did not want him around because I feared for my safety and also for my children.  Just before Christmas I told him to get out of my house, I locked him out but he punched a hole in the glass and opened the door.  He got into my house and he went to the kitchen and got a knife out.  He came after me with the knife and chased me around the table.  He was saying that he would kill me.  I was very scared at what he was saying I believed that he would do it.  Fabian was at school at the time and Suzanna was asleep.  After a short time he calmed down and said sorry.  I did not tell the Police about this because I was scared what would happen to me.
After about two weeks Glisha found a unit in Potter St Dandenong.  He moved in there, but he still came around and rang me and drove past my house many times.  He was watching me all the time.  Often my phone would ring at two or three o'clock in the morning.  He would often ring to ask me for things like a vacuum cleaner and blankets and lots of other things.  I told him to leave me alone and to get help from his ex wife.  She is now six months pregnant to him.
On Wednesday the 9/2/2000 I received a phone call from Glisha about 8.00 pm.  He wanted a vacuum cleaner and pots for cooking, he said he would come around.  I told him not to come.  I feared he would come so I got Fabian and Suzanna and put them in the car.  John and Michael were at a friends house.  I drove off and went to the milk bar I drove off to a high spot where I could see my house in case he came.  I waited for a while and did not see him come.  I went back home and I saw that Glisha was there his car was in the driveway and the garage door was open.  Glisha was in back yard, I drove off quickly and went to Hallam North Rd.  I went onto Churchill Park Drive Glisha rang me on the mobile wanting to know where I was.  I told him I was going to Police.  I found a quiet place in the bush there and waited for 20 minutes.
I decided that he should be gone by now and drove along Churchill Park Drive.  I turned left into Power Rd.  As I did this the road has a bend.  I saw coming around the bend, Glishas car.  He has a white Ford Fairlaine.  I was going south and he was coming north.  Glisha saw my car and drove to his right making his car hit mine in the front right hand side comer.  The cars hit very hard, making both stop.  There was a lot of damage the whole front of both cars were smashed in badly.  The road is two lanes, one lane each way. There is double lines dividing the road.  I was near the left side of the road
And he crossed from his side to my side.  You can see clearly in this position, there was no other traffic or animals or anything else on the road.  When the cars hit, I was thrown around and the seatbelt stopped me.  The children were held in by their seatbelts and car seat.  I undid my seatbelts and a Chinese man came up to see if I was OK.  Glisha stayed in his car for a few minutes and then he got out.  His car was pushed back to the right side of the road on an angle.  He came across the road to me, I was scared for my safety and took the children and ran behind my car.  Glisha was saying "Are you OK, don't call Police I'll give you $5000 cash now".  I did not want to be close to him and tried to get the car in between us.  A long haired man stopped and Glisha asked him to give him a lift to the RACV.  The man bad a small truck type.  They drove away and I didn't see him anymore.
I believe that Glisha drove at me on purpose.  I believe that he wanted to hurt me and the children, I think that he may have been trying to kill me and the children.  If I did not have a big 4 wheel drive with a bull bar, I think that I would have been badly hurt or even killed.  The cars hit hard and fast.  There was not a lot of time to brake, Glisha did not try to stop or even avoid hitting my car.  As a result of the accident I have a sore shoulder and neck, I believe that Glisha hit me on purpose with the car, I did not invite him or give him permission to hit my car with his.  We were not involved in any form of motor sport at the time.  Although I know who he is and where he lives, he did not exchange details or offer to help.  He did not wait for Police.  

I note that Sava was not called to give evidence.  Excepting only to the extent of admissions by the applicant, it would be unfair for me to accept the truth of it, since there was no opportunity on the part of the applicant to cross-examine her.  It may be noted though that the applicant admitted that he had deliberately driven his car into Sava's vehicle and that he pleaded guilty to the charges, as he put it, to "demonstrate remorse".
(k)      T page 121 indicates that the Sava assault took place at a time when the light conditions were such that it was dark and there were no street lights.  Given that it occurred in February 2000 (in summer), it would not have become dark until quite late.

1. This brings me to the evidence of the applicant.
   (a)      He grew up in Romania.  He left school in the equivalent of Year 10 and then obtained a job selling shoes in the market.  His parents lived in a village some 150 kilometres away from the city in which the market was situated, and he commuted to and from that village for the purposes of his job.
   (b)      After meeting and marrying Liliana, the applicant came to Australia.  His first drug conviction occurred 27 days after his arrival and it was to be the first of many.  His father-in-law, according to him, forced him into the first conviction.  The extent of his father-in-law's involvement in his numerous subsequent heroin trafficking offences was never clear.  While it is fair to assume his father-in-law was involved to some extent (and as I have said his father-in-law elected not to give evidence to the Tribunal), it seems clear that the applicant was a participant in heroin trafficking and for his own profit.
   (c)      The applicant thus blamed his father-in-law for his drug involvement.  In relation to two of his theft convictions, he said that he was shielding his wife.  In general terms, the applicant tended either to place the blame for his problems on others or to make light of them.  The assault on Liliana was not, in his view, serious; the Sava assault was, in his view, an accident.  When asked for explanation in respect of any of them, the applicant responded with an apology for his past conduct but never an explanation. 
   (d)      As I have indicated, the assault on Liliana was not truthfully reported to Mr Redman.  The remorse found by his Honour Judge Jones was fleeting, if it existed at all.
   (e)      The applicant said, in relation to Sava, that on the day in question he went to her home in order to fetch his "doggie".  This occurred in the afternoon; after collecting his "doggie", he went to play soccer.  While driving his car in Churchill Park Drive that afternoon and quite by chance, he came across Sava who was driving her four-wheel-drive vehicle.  At 60 to 70 kilometres per hour, he drove his car into Sava's vehicle, causing extensive damage to both.  All of this, according to him, occurred in the afternoon.  The police report to the effect that it occurred at night, in the dark, could not, so he said, be correct.
   (f)       The applicant was asked on a number of occasions why he drove into Sava's vehicle causing an accident which could have had very serious consequences.  He did not ever offer a reason.  It must be remembered that, at the time of the Sava assault, he had parted from her and that there was no evidence as to any continuing financial or emotional involvement with her.  He said that he did not see the two young children in Sava's vehicle.  In fact, her two youngest children were in the four-wheel-drive vehicle and, given its height and size, one would have thought, been visible.  It is hard to believe that the applicant did not see them.  However, even if I accept that he did not, he should, at the very least, have appreciated that their presence in the vehicle was a very real possibility.  It is clear then that he drove into Sava's vehicle without concern for the possible and serious consequences.  His evidence that he came into contact with Sava coincidentally cannot be accepted as likely.  But even if one accepts his version of events, however unlikely, there was still no basis upon which the Sava assault can be categorised as anything other than horrific.
   (g)      Knowing that there was a very real threat of deportation against him and notwithstanding that he was on parole, the applicant then breached his parole, went underground and was found by the police more than one year later. 
   (h)      The applicant does not wish to go back to Romania.  The opportunities in Australia are, according to him, in every respect better.  And, so he said, he is a gypsy and gypsies are persecuted in Romania.  He said that he would not be able to earn a living; he said that he could not live with his parents because they reside in a village away from a city where he would most likely be able to find work. 
   10(a)   In his closing address, Mr Gerkens referred to the Human Rights Watch World Report 2001 on Romania.  That report is set out in full in these Reasons as follows.

   …
   Romania strove to meet the requirements for accession to the European Union, making slow but steady progress in human rights.  However, discrimination against Roma continued, and many sought refuge outside the country.  Police brutality remained a problem.  Freedom of press and thought and the right to a fair trial remained threatened.  Fallout from the NATO-Yugoslav conflict, including restriction of access to shipping on the Danube, created economic hardship in its already shaky economy, driving some Romanians into the hands of traffickers and forced labor abroad.  The pattern of blaming or prosecuting the victims of crimes, particularly Roma and trafficked women, continued.  Minority religious groups continued to experience discrimination with limits placed on the licensing of groups and the building of places of worship.
   Romania hosted the twenty-second annual International Lesbian and Gay Association (ILGA) European Conference in October 2000.  ACCEPT, the local organizing NGO for ILGA's conference, monitored progress in legislative efforts to decriminalize same-sex relations. In June the lower house of Parliament, the Chamber of Deputies, repealed article 200, but article 201, proscribing "sexual perversions," remained.  At this writing, only the Chamber of Deputies has voted to decriminalize gay sex; the upper Senate has yet to vote the bill into law.  On August 31, the Romanian government passed an ordinance on "Preventing and Punishing all forms of Discrimination," which explicitly included sexual orientation as a protected state of identity, to take effect within sixty days of publication.  Local NGOs hailed this decision as further incentive to the Senate to modify the penal code.  After the October conference, ILGA released a statement urging the repeal of article 200 as a precondition for Romania's E.U. accession.
   Roma continued to be subjected to ethnic and racial discrimination.  On March 12, 2000, the European Roma Rights Center (ERRC) lodged applications against Romania with the European Court of Human Rights regarding cases of violence and destruction of property in Casinul Nou, 1990, and in Plaiesii de Sus, 1991, which had been ultimately denied in Romanian courts in part because the statute of limitations had expired before they could initiate final appeals, due to the slowness of the court system.  Police in both cases failed to conduct on-site investigations, and in both cases the Romanian courts found that the offenses in which Roma were beaten and their homes destroyed had been committed "due to serious provocative acts of the victims."
   The number of inmates of Romanian penitentiaries and police lockups who were in pretrial detention dropped in 2000 from one-third in 1997 to one-fifth.  Amnesty International documented several cases of the use of excessive force, some of them including minors, and also reported that Romanian law currently allows police officers to use firearms in circumstances prohibited by international standards, such as allowing them to shoot when apprehending a suspect.  APADOR-CH, the Romanian Helsinki Committee, received numerous complaints from individuals claiming that they had been tortured or ill-treated by the police.  By law, such accusations were investigated by the Military Prosecutor's Office, which also decided whether an investigation was warranted, with the burden of proof on the victim.
   Freedom of the press continued to be threatened under 1996 modifications to the penal code, which provided harsh sentences for critical reporting on state bodies or state-owned businesses.  The Chamber of Deputies voted to eliminate or reduce the punishments under several articles of the penal code that restricted the freedom of expression.  However, these revisions had not been passed by the Senate, and journalists continued to be harassed by the police.  On May 26, Valentin Dragan of the newspaper Cugetul liber was severely beaten while attempting to recover a colleague's camera.  Since August 30, 2000, a draft of a Law on Free Access to Information of Public Interest in Romania has been circulating.  Several claims arising from libel cases involving public officials were brought to the European Court of Human Rights.
   The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) observed that while Romania made progress toward protecting and equalizing women's rights, few women held leadership positions in their field, and placed high priority on the adoption of proposed legislation on equal opportunities, domestic violence, and trafficking in women.  Women who dared to press charges against their traffickers faced prosecution themselves for evading border controls and for engaging in prostitution.  According to Romanian NGOs working on trafficking, police corruption only exacerbated the danger to trafficking victims and facilitated impunity for traffickers.  Moreover, they were often coerced by police into becoming informers.  In August, Cambodian police and U.N. human rights officers rescued seven women from Romania and Moldova who had been trafficked and forced into prostitution there.
   The National Agency for Child Protection was created in order to accelerate efforts to reform the child welfare system in Romania.  Romania signed the optional protocol of the Convention on the Rights of the Child, concerning the Involvement of Children in Armed Conflict.  

(b)Mr Gerkens also referred to a comparatively recent United States of America Department of State report on Romania, and particularly to a passage which indicates that the Romani population complain of routine police brutality and the fact that they are subject to discrimination.

(c)On an analysis of the documents referred to in sub-clauses (a) and (b) above, it would seem that Romania is making progress, more particularly because it wishes to join the European community, but that its progress is perhaps slower than might be desirable.

(d)      It must be remembered of course that the applicant earned a living as a shoe salesman in Romania before coming to Australia and that he did so by commuting to and from the village where his parents still reside.

1. I am prepared to accept that there may be a bond between the applicant and his son.  That said, the applicant has a history of violence towards people with whom he is in a close relationship, which is most disturbing.  The Sava assault is particularly worrying and the fact that children were involved in it is, in my view, significant. 

2. The evidence of each of the applicant and Liliana can properly be characterised as unreliable and in general terms not worthy of credit.  It is clear to me that neither of them was truthful in giving evidence before the Tribunal.  Each of them pleaded repeatedly for a "second chance"; the applicant has in fact, as these Reasons demonstrate, had many chances.  He was under threat of deportation when his sentence of 3 years was reduced to 11 months so removing the threat at that time.  One might have thought that he would have treated that as a warning.  But the deportable offence was then committed, and in consequence the applicant was under further threat of deportation.  (I note in general terms in this context that, having regard to the decision in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, I should accept the sentencing remarks and the sentence, even though in some respects subsequent events would suggest that he may have been mistaken.) As to the Sava assault, no remarks by the sentencing Magistrate were available. Apparently, the tapes are only retained for a period of a few months and then deleted. The Magistrates' Court is not a court of record. However, and on any basis, the Sava assault must be treated as horrific.

3. The applicant was a trafficker in heroin, one of the most addictive prohibited drugs and he trafficked in drugs for an extended period.  Of the nine years since he has come to Australia, the applicant has spent three in prison.  It is true that he has not trafficked in drugs for some while, although confinement in prison may perhaps be relevant.  Nor have there been any theft or other driving convictions for some time, leaving aside, of course, the Sava assault.

4. The attack on Liliana, which is the deportable offence, might perhaps, if one is very charitable (and perhaps over-charitable), be described as having its origins in a domestic situation.  This should not be construed in any way as indicating that it deserves condonation.  On the contrary it appears to have been a singularly nasty attack against a woman.

5. The Tribunal is left with the Sava assault which is of comparatively recent origin.  That attack took place in circumstances never explained by the applicant and which must have been terrifying to Sava and to the two young children in the vehicle with her. 

6. This brings me to a consideration of General Direction – Criminal Deportation Nº 9 ("the Direction").  Clause references contained in this clause 16 should be construed as references to numbered clauses in the Direction.

(a)      The crimes committed by the applicant were unquestionably and on any basis abhorrent; see clauses 11(a) and 11(l) in particular.
(b)      Clause 6 of the Direction provides as follows:

…

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.

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

(c)      As to clause 8 (it is read with clauses 9 and 10), I consider, in the light of the Sava assault, that the risk of recidivism is unacceptably high.  The applicant has demonstrated a propensity for violence and particularly towards persons with whom he is or has been in a domestic relationship.  The applicant has, from the time when he first arrived in Australia, consistently and repeatedly displayed a profound disregard for the laws of Australia.
(d)      It is my view that this is a case where the Australian public would expect that the applicant be deported and would, indeed, be surprised if I did not affirm the decision under review.  The applicant was a trafficker in heroin and a thief, amongst other things, who has, as I have said, demonstrated a capacity for serious violence, even when under threat of deportation. 
(e)      As to the best interests of Glisha (a primary consideration), it is by no means clear to me that being with his father is necessarily in his best interests.  Liliana plainly thinks it is; but Liliana has demonstrated that she is entirely unreliable in a number of respects.  The Sava assault involved children, admittedly not the applicant's own, but children with whom he had lived in a close family relationship.  It must also be remembered that the applicant had spent only one year with Glisha while he was in hiding from the police and that his contact with Glisha has been confined to intermittent visits thereafter.  The facts in this case are reminiscent to an extent of some of the facts in Re Kavanagh and Minister for Immigration and Multicultural Affairs [2000] AATA 893 and where Deputy President McMahon affirmed the refusal of a spouse visa. I note, for the sake of completeness, that the applicant's Statement of Facts and Conventions quoted earlier in these Reasons, contains extensive comment as to the Convention on the Rights of the Child; Mr Gerkens in his closing submission did not refer to that comment.
(f)       As I have indicated, Liliana refused to answer questions as to whether if necessary she would go to Romania with the applicant.  But there is in fact no real reason why she should not do so if she genuinely loves the applicant as much as she contends.  It might, indeed, be difficult for her to obtain work in Romania but then she does not appear to have worked much in Australia. 
(g)      I accept of course that life is better in Australia than in Romania and that living standards are higher.  I do not, however, accept that Romania is as bad or discriminatory a country as the applicant seeks to suggest.  The Human Rights Watch document to which I have referred indicates that real progress is being made, such that Romania in 2000 hosted an international lesbian and gay European conference.  I do not accept that all gypsies are discriminated against all the time.  It is noteworthy that the applicant before coming to Australia apparently had no difficulty in earning a living in Romania and there was no evidence of any discrimination against him.  The applicant is a personable young man and attractive in appearance.  However, he has given numerous indications of the fact that he is amoral. 
(h)      Mr Gerkens argued that there was no evidence before me as to the deterrent effect of affirming the decision.  In the nature of things it is unlikely that positive evidence of this type would be available.  It is perhaps best to put the matter in the negative and to say, as I do, that to refuse to affirm this decision would send entirely the wrong message.  (I refer in this context to clause 14 of the Direction.)

1. Clause 13 of the Direction is relevant in the context of recidivism:  it is quoted in full in these Reasons as follows:

   …

   13.      It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism.  Decision makers should have due regard to the Government's view in this respect.  In particular the following factors will be relevant to the assessment:

   (a)the person commits a further offence after having been warned previously about the risk of deportation.  They should expect that the warning will be given significant weight in consideration of his or her case;

   (b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour.  In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;

   (c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

Clause 13(a) of the Direction is of particular relevance in this context. 
(j)        I accept, nonetheless, that to affirm the decision might involve hardship to Liliana and for that matter to the applicant accepting as I do that they have indicated that they do intend to remarry, and notwithstanding the remarks of his Honour Judge Jones as to the fact that their relationship is over.  Liliana is an Australian citizen and so for that matter is Glisha.  However, she and Glisha have lived apart from the applicant for extended periods, partly because of his periods of imprisonment and partly because of his period of living with Sava.  Liliana receives, as I have said, social security for herself and her son and it is possible in all the circumstances that she receives help from her parents.  As to whether she will accompany the applicant to Romania is entirely unclear because she refused to answer.  The real truth of the matter is that each of the applicant and Liliana wishes to stay in Australia to take advantage of Australia's higher living standards but without apparently being prepared to obey Australia's laws.  (Liliana's history of shoplifting is relevant in this connection.  It must be remembered also that it seems likely that she produced the statement by her parents and that she forged their signatures.  The untruthfulness of their evidence before the Tribunal is also a relevant factor.)

1. During the course of his evidence, the applicant made a number of admissions.  He admitted that he was a drug dealer; he admitted that he had committed the Sava assault and, although seeking to pass the blame to others, he also apologised, as I have said.  As to whether those apologies arose from the predicament in which he now finds himself (entirely because of his own actions) is difficult to estimate, but is in my view likely.  His Honour Judge Jones found at the time of the attack on Liliana that the applicant had displayed remorse.  That remorse was, as I have indicated, short-lived, if it was real, which is doubtful.

2. I note further that Mr Gerkens cited the decision of Brennan J, sitting as President of this Tribunal, in Re Salazar-Arbalaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98. Mr Gerkens referred me in particular to a passage which commences, at page 100, with the words:

   …
   Rehabilitation is never certain.  One cannot predicate of an offender that he will not fall again, whatever the circumstances.  The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.    

I note that in this context that it is my view, as set out in these Reasons, that the applicant does indeed pose an unacceptable risk to the Australian community.  Later in the same decision, at page 101, Brennan J said:

… The criminal sale of heroin is an offence which raises a strong case for deportation; whether the offender be a pusher who seeks a profit from a loathsome trade, or whether he be an addict who seeks merely to maintain his supplies of the drug.  If the offender be a pusher, he shows a conscious disregard for the lives of his victims, …  

I mention that citation of Re Salazar-Arbalaez as a matter of completeness although it is not clear to me that it advances the applicant's case.

1. I accept that a child is usually, but not invariably, best off with both of his parents.  I accept also that living in Australia is preferable to living in Romania.  Were it not for the Sava assault, I might have thought that it was, at least, possible to take another view as to this decision.  Some time has elapsed since the last heroin-trafficking offence; this applies also in relation to the thefts and other offences, and it is just possible that this is not entirely due to the lack of opportunity because the applicant has spent so much time in gaol.  There was evidence before me of stress courses taken in prison.  There was also evidence before me as to the fact that the applicant is drug free.  (The relevance of the drug-free certificates is not altogether clear; the applicant was, so I was told, a trafficker in heroin rather than a user.)  But in my view and on balance, the horrific nature of the Sava assault, coupled with the breach of parole and the applicant's going underground to escape the police, all at a time when he knew that he was under threat of deportation, must have the effect that this is not a case in which the discretion can be exercised in favour of the applicant.

2. In the circumstances, the decision under must be affirmed.

   I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of 
   Deputy President J. Block

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  24-25 June 2002
   Date of Decision:  10 July 2002
   Solicitor for the applicant:           Mr M. Gerkens, Messrs Fernandez Canda Gerkens

   Solicitor for the respondent:        Mr T. Fell, solicitor with Australian Government Solicitor