"VZP" and Minister for Immigration and Multicultural Affairs

[2000] AATA 586

DECISION AND REASONS FOR DECISION [2000] AATA 586

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. V99/1150

GENERAL  ADMINISTRATIVE  DIVISION     )          
           Re      VZP  
  Applicant
           And    Minister for Immigration and Multicultural Affairs            
  Respondent

DECISION

Tribunal       Deputy President B.M. Forrest     

Date14 July 2000

PlaceMelbourne

Decision      The decision under review is set aside and the matter remitted to the respondent with a direction that the deportation order be revoked.        
  …………………………………
  Deputy President
CATCHWORDS
MIGRATION – Deportation – applicant migrated to Australia from United Kingdom with his family in 1981 – lengthy criminal history relating to drug addiction – General Direction – Criminal Deportation No. 9 – primary considerations – expectations of the Australian community – protection of the Australian community – best interests of the children of the applicant – other considerations – decision set aside.
Migration Act 1958 ss. 200, 201, 204 and 499
Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161

REASONS FOR DECISION

14 July 2000           Deputy President B.M. Forrest     

1. The applicant has applied to the Tribunal for review of an order made on 10 September 1999 by a delegate of the Minister for Immigration and Multicultural Affairs, pursuant to s. 200 of the Migration Act 1958 ("the Act") that the applicant be deported from Australia.

2. The relevant provisions of the Act are:

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

   201       Where:

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

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

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

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

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

   …

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

   section 200 applies to the person."

3. Section 201 applies to the applicant. The deportation offences were committed in July 1991. At that time the applicant had eight years, eleven months and seventeen days permanent residence in Australia (s. 204 of the Act).

4. The deportation order is founded on offences for which the applicant was convicted and sentenced in the County Court in 1993 being offences of "attempted armed robbery (2 counts), theft (3 counts), armed robbery (2 counts), attempted theft, burglary and possession of a drug of dependence, for which he was sentenced to two years and six months imprisonment" ("the deportation offences").  On its face the deportation order does not identify a particular offence for which the applicant was sentenced to imprisonment for a period of not less than one year (s. 201(c)) however, as appears from the sentencing remarks, the applicant was sentenced to a period of imprisonment of at least twelve months on each of the offences presented with a total sentence of two years and six months wholly suspended for two years upon condition that the applicant undertake drug and alcohol treatment.

5. The applicant was born in England in 1970.  He arrived in Australia in 1981 at age 11 with his parents, sister and two brothers and since arrival he has not left Australia.  The parents and sister are Australian citizens.  It was unclear whether the brothers are also Australian citizens.

6. In Australia the applicant found it difficult to adjust.  He began experimenting with alcohol and drugs at an early age.  He left school after completing Year 9.  He subsequently completed Year 10 while in a Youth Training Centre.  After leaving high school he worked in a nursery for twelve months.  Then, at age 16, he commenced an apprenticeship as a chef in the city.  He worked long hours.  Because of the distance to travel to work his employer offered the applicant accommodation at his house.  Around this time the applicant began taking heroin.  His employer (a 60 year old male) began to provide him with drugs and sexually abuse him.  This situation continued for over two years until the applicant finally left the employment without completing his apprenticeship.  By then he was a daily user of heroin.

7. The applicant has a lengthy criminal record.

8. In 1989 he was placed on a bond for forging and uttering a prescription and theft.  In 1990 he was sentenced to a total of eighteen months detention in a youth training centre for burglary offences and to three month and six month terms of detention for a series of burglary and theft offences to be served concurrently with the eighteen month sentence. 

9. In 1993 the applicant was convicted of the deportation offences.  The circumstances of the commission of the deportation offences are as follows.  The applicant with three others was driving around a Melbourne suburb.  The applicant got out of the car, and with a blood filled syringe, approached a man and demanded his wallet.  When the man refused and walked away, the applicant returned to the car and continued driving around with his companions committing other offences; three offences involved the applicant grabbing handbags from women he had forced to the ground, once while holding a hammer, and, with his companions, three offences of shop robbery once while pretending to have a gun.  At the time of these offences the applicant was affected by Rohypnol.  The charge of possession of a drug of dependence related to possession of heroin purchased with the proceeds of the thefts.  A second set of offences committed in 1991 and heard at the same time as the deportation offences comprised a theft of a handbag from an unlocked car and a burglary of a private residence while the owner was absent.

10. In 1991 the applicant commenced a relationship with his defacto spouse, Kylie.  Kylie is an Australian citizen by birth.  They had known each other at high school.  Kylie had a daughter, Rebecca, born on 20 May 1990 from a previous relationship.  The applicant and Kylie commenced living together in late 1992.  The relationship has continued since despite periods of separation when the applicant has been in custody or in a residential drug treatment programme.

11. On a number of occasions the courts have ordered the applicant to attend drug treatment.  In December 1992 he spent three and a half months in residential drug rehabilitation.  He was discharged in March 1993 for inhaling petrol fumes and re-admitted in April 1993 where he remained until August 1993 when he was discharged for consuming alcohol.

12. In October 1993 the suspended sentence imposed earlier that year for the deportation offences was restored due to the applicant breaching its terms by consuming alcohol, then resuming heroin use and committing a burglary.

13. The applicant was released on parole in early 1994.  Within ten days he was using heroin again and committing offences.  He was released on bail in February 1994, committed a burglary in March 1994 for which he received a sentence of six months imprisonment.  On appeal to the County Court the sentence was suspended for two years on condition that the applicant undertake drug treatment.  He attended Pleasant View Centre for a four week detoxification programme.

14. In late 1994 the applicant, Kylie and Rebecca moved out of Melbourne to the Mornington Peninsula.  At the time Kylie was pregnant and the couple decided to get away from the applicant's drug associates.  They lived there for two to three years.  Initially, the applicant was able to find employment at a nursery where he remained for approximately eight months.  Kylie worked as a secretary.  In 1995, their daughter Jade was born.  After his employment at the nursery ceased the applicant obtained a job as a labourer for a company making kitchen cabinets.  This lasted for about four months.  He was charged with theft of a tool from a fellow employee.  For this offence he was given a community based order.  He was unable to find another job in the area.  When Jade was 6 months old Kylie returned to work and the applicant became the primary carer of Jade and Rebecca.  He was involved in Rebecca's kindergarten and school.  The applicant said that while he was not completely drug free for the whole of this period his addiction was under control.  This was a period of relative stability in the applicant's life as from mid 1994 to 1997 his offending was confined to the one offence that of the theft of the tool.

15. In 1996 the family moved closer to Melbourne for the applicant and Kylie to obtain work.  Both felt confident the applicant's heroin habit was behind him.  The applicant obtained work at a nursery which he held for six months.  However he gradually became re-associated with his former drug acquaintances and again resorted to heroin and committing offences.

16. In May 1998 he pleaded guilty to numerous charges of burglary and theft from dwelling houses and was sentenced to eighteen months imprisonment.  He was apparently under the influence of heroin at the time of commission of the offences. 

17. The applicant's evidence was that during this sentence he did not use heroin although it was obtainable within the prison system.  A report from the Department of Justice (Exh. R2) states that during his sentence he was "not involved in any untoward behaviour".  He did return two positive samples, once for cannabis and once for benzodiazopines.  While in prison he completed a four month intensive drug programme.  He also consulted the prison psychologist on a regular basis. The psychologist in a report to the respondent referred to the applicant having been sexually abused by a family friend while in England, at the age of 8 and considered that the applicant suffers from symptoms of post traumatic stress disorder from the two episodes of sexual abuse.  It was the psychologist's view that the applicant was committed to working on his problems and genuinely interested in overcoming his addictive behaviour.

18. In March 1999 the applicant was released on parole.  Four months later he re-offended.  In company with a co-offender the applicant entered shop premises.  The co-offender distracted a staff member while the applicant stole cash and goods.  The applicant was carrying a knife.  He was sentenced to nine months imprisonment for these offences and also sentenced to twenty-one days imprisonment for theft from a motor car.

19. A report dated 8 July 1999 from Ms Renee Dodds, a Community Corrections Officer, to the Department of Immigration and Multicultural Affairs outlines the applicant's circumstances during the four months from release on parole in 1999 until he re-offended.  Ms Dodds states that the applicant attended all supervision sessions, community service and provided urine samples as required.  The applicant submitted a positive test for heroin on 9 April 1999 and overdosed on heroin a few days later.  After this a further treatment programme was arranged.  It included a home withdrawal programme with daily counselling visits, urine testing and a methadone programme.  Ms Dodds states that despite arranging for counselling only one visit was made to the applicant.  Tests revealed that until mid June 1999 he remained heroin free.  She states that "despite his recent offending behaviour, [the applicant] has consistently exhibited motivation and commitment to successfully complete his Parole Order, and to continue to live a drug free and law abiding lifestyle".  Ms Dodds states that "it is the opinion of the writer that [the applicant] was not given full opportunity whilst on parole to address and treat his drug addiction, and that this is a contributing factor in [the applicant] having re-offended".  Ms Dodds concludes that had the applicant been given "full opportunity to receive intensive drug treatment and counselling as required, he would have learnt to adopt the mental and physical strategies needed to abstain from heroin for not only a two and a half month period, but to abstain altogether, thus avoiding any criminal activity".

20. The Minister for Immigration and Multicultural Affairs, Mr Ruddock, has issued a General Direction under s. 499 of the Act of Australia's Criminal Deportation Policy ("the Direction") dated 21 December 1998 and with effect from that date. It replaces the Policy Statement "Australia's Criminal Deportation Policy" issued on 24 December 1992 by the then Minister, Mr Hand. Generally speaking the Direction covers the same issues as the previous Policy Statement. The weight to be given to the relevant considerations is stated more explicitly in the Direction than in the previous Policy Statement. While under the previous Policy Statement the Tribunal took the policy into account unless there were cogent reasons to depart from it, the Direction has the force of s. 499 of the Act.

21. The Direction requires decision makers to have regard to two "primary considerations" and relevant "other considerations".  Paragraph 5 states that a "decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations".

22. There are two primary considerations (para. 6):

    "(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." 

23. Community expectations are identified as having two aspects (para. 8):

    "(a)     the expectation that the community will be protected and not put at risk; and

    (b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.":

24. Government policy on community protection is stated generally in paragraph 9:

    "It is the Government's view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime.  In particular, it is the Government's view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community.  The Government considers that children and young people are especially at risk in this area.  The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders.  This is of particular importance when the offences in question are in relation to drugs and crimes of violence.  A decision maker should have due regard to the Government's view in this respect."

25. In relation to the first of the primary considerations, in assessing the level of risk to the community and the need for its protection the Direction says that three factors are relevant (para. 10):

    "(a)     the seriousness and nature of the crime;
    (b)       the risk of recidivism; and

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

26. Paragraph 11 of the Direction lists categories of offences regarded as "very serious".  Included within the categories of offences is armed robbery, and attempting to commit any of the listed offences.  Further, the Direction identifies crimes involving violence or the threat of violence as very serious.  The deportation offences which include two counts of armed robbery and two counts of attempted armed robbery fall within the very serious category.

27. The applicant's subsequent offending includes numerous thefts, burglaries and aggravated burglaries.  Although, these offences are not strictly within any of the identified categories and do not appear to have been committed with an explicit threat of violence, the carrying of weapons to the premises on at least two occasions suggest a preparedness for violence and are consequently of serious concern in the context of community protection especially as some of the victims were elderly.

28. Where the Direction speaks of the seriousness of drug related crime, the emphasis is on persons profiteering from the drug trade.  The applicant's offending is related to his heroin addiction.  He has not been involved in the sale of drugs to others.

29. On 23 February 1994 the applicant was advised that he was being considered for deportation.  He was formally warned on 5 September 1994.  This warning coincided with the period during which the applicant was leading a reasonably stable life with Kylie and the children.  At the time he thought the warning represented a threat rather than a statement of reality because he regarded himself as an Australian.  In his interview on 7 January 1999 he said that he did not realise that the issue of deportation would be revisited.  The material before the Tribunal revealed that a further warning was to be given in April 1999 but was not administered.  Instead the deportation order was subsequently made.  I take into account the fact that the applicant continued to commit serious offences after he had received a warning from the Immigration Department in 1994 and following his interview on 7 January 1999. 

30. The issue of recidivism in the applicant's case is dependent on his capacity to overcome his addiction to heroin.  The applicant has clearly had periods when he has been able to be in control of his drug addiction.  These included an extended period while living on the Mornington Peninsula and more recently, albeit during his prison sentence in 1998, and from his incarceration in mid 1999 to February 2000 he has been free of heroin.  On 4 February 2000 he intravenously used heroin brought into the immigration detention centre by a friend who was visiting him.  When asked about this he responded that as a heroin addict he has trouble if heroin is placed in his way when he is not "travelling too well'.  He stated to Mr Cummins, psychologist,  that he had been taken off medication ten days previously and was feeling psychologically vulnerable at the time.  Subsequently he was prescribed the anti-depressant Doxefin and the anti-epileptic Epilim.  He acknowledges that he is in need of further residential rehabilitation and states that he will undertake this.  He has been in touch with a residential drug rehabilitation programme and has been assessed as suitable for a placement. 

31. Mr Jeffrey Cummins, a clinical psychologist, assessed the applicant.  Mr Cummins prepared two reports and gave oral evidence.  Mr Cummins considers that the applicant requires a residential rehabilitation programme, probably for an extended period and that his chances of success are improved if he undertakes individual counselling to address problems associated with the sexual abuse.  The applicant has agreed to do this.  Mr Cummins identified some positive factors towards rehabilitation.  These are that the applicant seems motivated to undergo drug rehabilitation and the individual counselling, he has of his own accord been in contact with a residential rehabilitation programme and he has the ongoing support of Kylie and his family.

32. The task is to determine whether there is an acceptable risk to the community that the applicant will desist from committing further offences.  Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98.  Because of the applicant's drug addiction and the history of relapsing, he is at risk of reoffending.  It is not in dispute that his offending is related to his drug addiction and his capacity to overcome his addiction is central to his rehabilitation.  The applicant has over the years attended a number of drug rehabilitation treatment programmes, some Court ordered, others on a voluntary basis.  He remains motivated to treat his addiction which I accept is genuine.  This provides some hope for the future.  He also requires professional help to treat his feelings of inadequacy and low self esteem from the episodes of sexual abuse.  This help, according to Mr Cummins, would also be likely to further enhance his prospects for long term drug rehabilitation.  Properly treated and with the assistance of his family he has the capacity to contribute as evidenced by his active parenting role and employment during the period in his life when he was relatively drug free.

1. There is another matter.  The applicant has provided a statement to police in respect of a homicide that he witnessed while in prison.  A letter from a Detective Inspector of Police states that the applicant came forward in relation to the murder and that charges have been laid.  The applicant is a key witness for the prosecution and is now held in protective custody as the accused are aware that he has made a statement against them.  Apparently a fellow inmate who had also witnessed the homicide has since died in suspicious circumstances.  The applicant is mindful of the danger of retribution against him.  The applicant's willingness to come forward in these circumstances may be viewed in various ways, one being an indication for a desire to reform.  Another is an awareness of the potential consequences should he reoffend and be again imprisoned.

2. The Direction requires that the question of general deterrence be considered in an assessment of the need to protect the Australian community.  The insidiousness of drug abuse and the social dislocation it causes is well known.  There is no easy or common solution as to how to deal with the problem of drug abuse which is central to the applicant's offending.  The recent public debates on the proposed controlled injecting rooms in Victoria illustrates the diversity of views in the community at large and among professionals in the field of how to deal with the problem of drug abuse.  However, it seems to me most unlikely that the deportation of the applicant would act as a deterrent to other addicts.

3. The second of the two primary considerations concerns the best interests of the children.  These are discussed in paragraphs 16 to 20 of the Direction.  There are two children whose interests need to be considered.  The applicant is not the biological father of Rebecca but she regards the applicant as her father and he has filled a parenting role.  Her natural father has no contact with her.  Jade is the applicant's daughter.  Both children are Australian citizens.

4. I am satisfied that the interests of both children coincide in relation to the issue of deportation.  Their mother has been their primary carer during their lives, although for a while the applicant filled a direct involved parenting role.  Despite the applicant's past behaviour and periods of separation the family remains close.  Kylie and the children visit him each weekend and keep in contact by phone on a daily basis.

5. According to the applicant and Kylie the applicant has never used drugs in the presence of the children, however he agrees that they have seen him whilst he has been under the influence of drugs.  Mr Cummins commented on the impact of the applicant's drug addiction and criminal behaviour.  He said that as the children grow older if he continues his pattern of drug use and offending there will inevitably be some negative impact.  However, he commented that this family unit is remarkable in the level of acceptance by Kylie and to some extent Rebecca, of the fact that the family has to make certain adjustments because the applicant has a drug problem.  He felt that this acceptance had been achieved to date without compromising the psychological position of the children.  In interviews with the children he found that they reacted affectionately to the applicant and he considered that deportation would have a significant negative impact upon the children.

6. Kylie's evidence is that if the applicant is deported the effect on her children will be devastating.  She impressed as a caring and supportive person genuinely concerned for the welfare of her children and demonstrating a responsible attitude towards her partner's drug addiction.  She wants her children to continue to have a relationship with their father.  She estimates that in the eight years she has been with the applicant about four years have been spent as a family unit.  In the event the applicant were to be deported she thinks it unlikely that she would go with the children to the United Kingdom because of the disruption from family, friends and school in Australia.  She considers that the children's best interests are served by remaining in Australia.  I accept her assessment in this regard.  While the task of bringing up the children has largely fallen on her shoulders with some support from grandparents on both sides the applicant has at times demonstrated a capacity to contribute to their upbringing during periods when he has been drug free.  I also accept that permanent separation from their father, the likely result if he is deported, would not be in their best interests in the medium to long term if he is able to lead, as promised, a lifestyle free of drugs and undergoes residential drug rehabilitation and counselling as indicated.

7. Two of the most common of the "other considerations" are stated in paragraph 7 of the Direction to be:

   "(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."

8. The weight to be given to the "other considerations" is explained in paragraph 21 which states that "it is appropriate that these matters be taken into account but given less weight than the primary considerations".

9. In relation to the degree of hardship to the potential deportee, the factors to be considered include (para. 22):

   "…

   (b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported.

   (c)the degree and extent of the potential deportee's ties with the likely country of return;

   (d)       the strength of other family, social or business ties in Australia;
   …"

10. The applicant left the United Kingdom at 11 years of age and has lived in Australia since.  All his immediate family have settled in Australia.  He has relatives in the United Kingdom but it would appear from the evidence that little in the way of assistance could be expected from that source if he were to return.  He has not maintained any contacts in the United Kingdom.

11. While the applicant has obvious language and cultural ties with the United Kingdom and is still a young man, I am satisfied his ties with the country of his birth are tenuous.  His family ties are all in Australia.  Deportation would cause severe hardship to him, separated from his family and the support they have given and will continue to provide.  If that support is removed it may reasonably be inferred that his prospects of rehabilitation, despite the availability of treatment in the United Kingdom would be diminished. 

12. For the matters outlined earlier as to the nature of the relationship, I am satisfied that Kylie, the applicant's partner of eight years, also an Australian citizen would suffer much distress and hardship were he to be deported.  His parents would also suffer much.  They migrated to Australia in 1981 with their family.  They have established their lives in Australia and acquired Australian citizenship.  Both are employed.  They continue to make a contribution to Australia, they impressed as decent citizens who have endured a lot of family distress with their son's drug addiction.  They also enjoy a good relationship with Kylie and the children.

13. The applicant presents with a depressing history of serious offending, a not unfamiliar sight in persons with a severe heroin addiction.  The history in isolation is little cause for optimism that the behaviour will not be repeated.  Yet as has often been chronicled the prospects of addicts who are motivated to overcome their addiction generally increases with age.  The applicant is both motivated and is at an age (30 years) at which the Tribunal has often heard some positive results might be anticipated to occur.  The failure of rehabilitation programmes along the way in the sense that the applicant has reverted to heroin use from time to time is a not an uncommon phenomenon. 

14. Mr Cummins thinks that further residential treatment and counselling to address the sexual abuse issues would significantly improve the applicant's long term rehabilitation prospects.  He regards the applicant's prospects of rehabilitation to be at least reasonable in the long term.  I accept this assessment of the applicant's prospects of rehabilitation.

15. The applicant has demonstrated in the past when drug free that he has the capacity to be employed and to make a contribution to the community.  I also have noted the unresolved stress in his life to which he has been subjected as a result of the sexual abuse he suffered at the hands of his employer during his apprenticeship and earlier when as a child of 8 years of age by a supposed family friend in the United Kingdom.

16. While the applicant's offending is regarded very seriously and is of the nature from which the community is entitled to protection, the applicant does have at least reasonable prospects of rehabilitation and children in Australia with whom he has a genuine bond and whose best interests are not served by his deportation.  Additionally, deportation would cause such severe hardship to the applicant that the discretion preserved by the Direction after taking into account all relevant considerations (see Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161) should be exercised in his favour despite the nature and seriousness of his criminal conduct.

17. For these reasons the decision under review is set aside and the matter remitted to the respondent with a direction that the deportation order be revoked.

    I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of
    Deputy President B.M. Forrest

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

    Date/s of Hearing  15 and 16 March 2000
    Date of Decision  14 July 2000
    Solicitor For the Applicant       Mr M. Gerkens, Fernandez Canda Gerkens
    For the Respondent                 Ms J. Taverner, departmental advocate