Wang and Department of Immigration and Multicultural Affairs - [2001] AATA 695

DECISION AND REASONS FOR DECISION [2001] AATA 695

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1405

GENERAL ADMINISTRATIVE DIVISION       )
           Re      XIANG DONG WANG
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date25 July 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
   [The Hon C R Wright QC]
  Deputy President
CATCHWORDS
Migration – non-citizen convicted of crime – permanent resident for less than 10 years – liability to deportation – character test – discretion – hardship – risk of recidivism.
Migration Act 1958 – ss.200 and 201

REASONS FOR DECISION

25 July 2001 The Hon C R Wright QC., (Deputy President)

The applicant, aged 33 years, is of mixed Chinese and Russian ethnicity. He is a national of the Peoples Republic of China ("China"). On 17 December 1985 he migrated to Australia with his parents and two sisters, whereupon all members of the family became lawful permanent residents. He was then aged 17½ years. Within 12 months of his arrival he had committed a number of serious criminal offences, including sexual assaults. In all, the applicant was convicted of 12 offences, 9 of which would have justified deportation. Following his apprehension for offences committed in that State he was remanded in custody in South Australia in October 1986 and since then has been a prisoner under sentence in various Australian States in respect of the numerous crimes in which he was involved. He is currently serving a sentence of imprisonment in Victoria and is now eligible to apply for parole. If not paroled his sentence will expire in approximately 15 months. So far as is known there are no remaining charges outstanding against him. As a non-citizen who has been convicted in Australia of an offence for which he has been sentenced to imprisonment for a period of not less than one year and which was committed before he had been a permanent resident in this country for less than 10 years, the applicant is liable to deportation pursuant to ss.200 and 201 of the Migration Act 1958 ("the Act"). The applicant does not contest such liability, but submits that the deportation order made by the Minister's delegate on 16 September 1997, requiring his removal from Australia after he has completed his custodial sentences, should be set aside. The deportation order was actually based upon the applicant's conviction and sentence for the crime of rape committed in New South Wales on 26 September 1986.
An application to the Tribunal to review the deportation decision was lodged pursuant to s.500(1)(a) of the Act on 7 October 1997 and a hearing took place before me in Melbourne on 30 April and 29 June 2001. Numerous exhibits including the 'T' documents were taken into evidence. In addition, oral evidence was given by the applicant, his sister Nina Wang and a registered psychologist and specialist in the assessment and treatment of sex offenders, David Anthony Ball.
The evidence establishes that the applicant's parents, now aged in their early 60's, emigrated from China in 1985 because it was considered by them that the family members were being treated as second class citizens due to their mixed ethnic background. Both of the applicant's grandmothers were Russian and both grandfathers were Chinese. The applicant claimed that he completed only 3 or 4 years of schooling in China and that he was teased and assaulted by fellow pupils nearly every day. He said that the family was unable to have access to benefits and opportunities available to full blood Chinese members of the community and it was hard for people of mixed Russian and Chinese origin to secure well paid employment. The applicant is a Muslim. When he came to Australia his English was very limited, but in the time that he has been here that situation has improved and he was reasonably articulate whilst giving evidence without the assistance of an interpreter.
He said that when he came to Australia he gravitated towards the company of other people of the same ethnic background, most of whom were older than him and had police records. They told him that in Australia if you break the law when under 18 years of age "they are not going to punish you". Under their influence he became involved in burglary and other offences of dishonesty. By doing so he gained their praise and the acceptance which he craved. Before leaving China, he said, he had little or no sexual experience, but he knew that the official Chinese attitude to sexual activity outside marriage was repressive and that such conduct could result in prosecution and punishment. In Australia he found there was much more freedom in respect of sexual matters and he accompanied his new found friends to pornographic movies and brothels. He claimed that he was unaware at that time that rape was a serious offence in Australia, but I do not believe him. I am quite satisfied that when he committed the sexual assaults which I will shortly describe, he was fully aware of their enormity. He says that he was sexually assaulted as a child in China and was also raped whilst a prisoner in gaol and that those experiences have now helped him to realise the seriousness of his own sexual offences. There is no independent evidence to corroborate his claims to have been the victim of sexual assaults and I entertain some doubt as to their veracity. He claims now to realise the horrific nature of the rapes which he committed and their impact upon his victims. He claims remorse and sorrow for inflicting trauma and chronic emotional pain on his victims. These claims were given considerable significance by Mr. Ball in assessing the applicant and I will return to them when reviewing his evidence.
Although the offences for which he is now serving a sentence in Victoria were first in point of time, they were the last matters to come before a court, the reason being that the applicant was arrested and sentenced for crimes in South Australia before the authorities in Victoria and New South Wales had sought to detain him for offences in those jurisdictions.   After serving time in South Australia he was tried and sentenced for crimes in New South Wales and only then, after serving lengthy prison terms in each of those States did he return to Victoria.    The following chronology taken from the comments made by His Honour, Judge Hassett when sentencing the applicant in the Victorian County Court on 9 March 2001 will explain the sequence of relevant events:
"Alex Wang, you are before me to be sentenced in respect of three offences.   You pleaded guilty to each of those three offences when you were arraigned on 15 January this year on a presentment containing charges of those three offences.   The offences themselves all occurred in the early hours of the morning of 3 March 1986 at premises at Morwell Avenue, Dandenong.
By pleading guilty you admit in relation to Count 1 that you entered those premises with the intent to commit an offence involving an unlawful and indecent assault to a person therein, and by your pleas to Counts 2 and 3 you admit that while in those premises you, on two occasions, committed rape of a young woman, I think, aged about 26, who was then in the premises.   In each instance the rape was constituted by the introduction of your penis into the vagina of the young women.
The maximum penalty for rape at the time was 10 years' imprisonment.   Of course, they were the more serious offences.   The offences of rape were not surrounded by any gratuitous violence and in saying that, I don't by any means seek, of course, to minimise the seriousness of the offences.   They were indeed rendered more serious by reason of the fact that they occurred within the home of the victim.   There is a dual attack upon the integrity of the victim in those circumstances.
The young lady awoke in the early hours of the morning to find you in her bedroom and alongside her.   She was frightened, you assaulted her sexually and ultimately you raped her in the bedroom.   You then picked her up and carried her out to the lounge room where you again raped her.   By that time she had pretty much ceased struggling against you or seeking to resist you in the light of the trauma to which she had been subjected.
After raping her you left the premises via a window.   The victim then rang the police and rang her mother.    The police attended at the premises and amongst other things, fingerprints were located inside and outside the relevant window.   Some months later those fingerprints were identified as matching your fingerprints.
Six months later you were in New South Wales and in September of that year you committed two further offences of rape on two young women in that State.   One of them was committed in the home of the victim while her parents were, in fact, within the house.   The other rape was a rape of a young woman who was assisting a parent with a milk delivery round in the early hours of the morning.   It seems that you were not apprehended in respect to either of those offences but rather you went to South Australia.
In the first week or so of October you committed burglary on four separate houses and in the middle of October committed burglary upon another home.   Each of those four properties on which burglaries were committed in South Australia were occupied by females.
The burglary which you committed on 19 October was coupled with an offence of rape that you committed on the victim in her home.   On that occasion and in addition, you effected a theft of her property.   It appears that after you raped her you tied her and she remained tied up while you effected the theft.   You then untied her, as I understand it, before leaving.   On that day you were arrested in South Australia, and as I apprehend it, you have been in custody ever since that time.
In May 1988 you were sentenced to a total effective sentence of 12 years' imprisonment in South Australia in relation to those various offences, with the sentence to run from 19 October 1986, and a non parole period of some 8 years was fixed.   The earliest release date for you was 18 October 1994.
In February 1990 you were transferred from South Australia to New South Wales and you were there dealt with for the offences to which I have made reference as having occurred in that State.
In September 1992 you were sentenced in New South Wales to a total effective sentence of 6 years' imprisonment to commence on 22 February 1994 at the expiration of the South Australian sentence.   That sentence imposed in New South Wales, accordingly, was to expire and did expire on 21 February of last year.
On that date you were arrested in New South Wales upon the expiry of your sentence and you were extradited to Victoria.   You remained in custody here at Port Phillip Prison since that time and accordingly, you have now spent some 382 days in pre-sentence detention in respect of these offences, apart from the sentences that you have served in New South Wales and in South Australia."
Taking into account the sentences which the applicant had already served interstate, and making due allowance for the totality principle, Judge Hassett then sentenced the applicant as follows:
Count 1         (Burglary)                 3 months imprisonment.
Count 2         (Rape)  3 years imprisonment.
Count 3         (Rape)  3 years imprisonment.
After directing that some parts of the sentence be served concurrently and others cumulatively so as to impose a total effective term of 3 years and 4 months, His Honour directed that the applicant serve a minimum period of 15 months before being eligible for parole.
It is clear from His Honour's comments that, had he not been obliged to take account of the chronology of events in South Australia and New South Wales and the lengthy periods spent in custody in those States, a very much more substantial period of imprisonment would have been imposed.
When sentencing the applicant for the offences of which he was convicted in South Australia, Matheson J had this to say on 23 May 1988.
"You have been convicted on your own confession of five counts of burglary and one count of rape, all the offences being committed between 2 and 19 October 1986.   The last count of burglary took place at the house of the girl you raped, the subject of the last count.
You are 20 years of age with no previous conviction and your background prompts some compassion.   You were born in China.   Your father was half Russian and half Jewish and your mother was Chinese.   Your family were very poor and were treated as foreigners and suffered discrimination.   You only had three years schooling and came to Australia in 1984.   Your family settled in Melbourne.   Your grasp of English is very poor and you do not appear to have had any satisfactory employment.
You followed another young man to Adelaide who had a similar background to your own.   Your money ran out and you had no food and that was your explanation for committing the burglaries.   I have not been supplied with precise details but I am told most of the property stolen has been recovered.
The rape is the most serious of your offences.   It is true that you did not cause your victim any serious injuries and that you used a condom but you placed your hands around her throat and after the offence you tied up her wrists and her ankles very tightly and put some clothing in her mouth whilst you proceeded to ransack her belongings and get away with a lot of her jewellery.   It must have been a very distressing incident for your victim."
The Court of Criminal Appeal of South Australia when dismissing the applicant's appeal against sentence said (dealing first with the burglary convictions):
"A substantial total amount of property was stolen in each of these crimes, property to the value of almost $10,000.   A large amount of this property was recovered, there being a net loss of about $1,500.   These crimes are serious crimes of burglary. Their special seriousness consists in the fact that they involved a disturbance of the security of the home in which people were sleeping when the crime was committed.
Crimes of that kind cause fear and feelings of insecurity in the occupants of homes and often disturb for years to come that sense of security which everybody is entitled to feel within the four walls of his or her home.   For that reason they must be seriously punished.
…".
Turning then to the rape offence the Court said:
"The rape was also a serious crime of its kind. The appellant broke into the home of the victim and threatened her. He placed his hands around her throat and committed rape upon her. The placing of the hands around the throat must have an utterly terrifying experience for that woman, and is a seriously aggravating feature of the crime. After the rape had been committed the appellant bound the woman and thrust some material into her mouth by way of a gag. In addition to stealing from the house, he took rings from the woman's fingers while she was so bound."
When sentencing the applicant in the New South Wales Supreme Court on 25 September 1992 Studdert J said:
"Xian Dong Wang (to whom I shall refer in these remarks as "the prisoner") is about to be sentenced for several offences, two of a sexual nature and one of breaking, entering and stealing.    He pleaded guilty to two of the offences involving members of the Cheng family and was convicted following a plea of not guilty in relation to the third offence involving Tricia Rachelle Smith.
THE CHENG MATTERS
The prisoner pleaded guilty to the following charges:
1.That on 17 September 1986 he had sexual intercourse with Winnie Cheng without her consent knowing she was not consenting;
2.That on the same date he did break and enter the dwelling house of Stewart and Rebecca Cheng and did steal a quantity of jewellery and other items of property belonging to them.
The two offences were related in that they were committed on the same date and the victims of the second crime and each offence was committed by the prisoner when he broke into the Cheng residence in the early hours of 17 September 1986.
1.        The sexual offence
Winnie Cheng was sixteen years of age at the time of the commission of the offence upon her, having been born on 30 December 1969.   When he gained entry to the Cheng residence in the matter later described, the prisoner went into Miss Cheng's terrifying ordeal are described in her statement of 17b September 1986 identified as Exhibit D and I have no reason to doubt the accuracy of the description of the events therein recorded.   It is unnecessary to repeat those details in these remarks on sentence.   Suffice it to say that the prisoner removed his victim's under-clothing, fondled and licked her vagina and handled her breasts before attempting penile penetration of her vagina.    Miss Cheng was successful in resisting this attempt but eventually the prisoner succeeded in effecting penile penetration of her anus.     The prisoner used a condom during the commission of the crime which he later removed and left on the bedroom floor.
…
THE SMITH MATTER
The prisoner stood trial on a charge of having had sexual intercourse with Tricia Rachelle Smith without her consent knowing she was not consenting.   The offence was alleged to have occurred on 26 September 1986.
The prisoner pleaded not guilty to the offence charged when the indictment was presented on 13 July 1992.   He was remanded in custody for evidence and submissions on sentence.
Miss Smith, who at the time of the offence was eighteen years of age, was assisting her father on his milk run in the early hours of 26 September 1986.   She made a delivery in Baringa Close, Green Valley and was making her way back to the roadway when she was approached by the prisoner.   He dragged her at knife point into a nearby park where the offence was committed.
The real issue at the trial was the issue of identification and of course the jury's verdict reflects that it was satisfied beyond reasonable doubt that the offender was the prisoner.   There was no real challenge to the version given by Miss Smith.
As to the details of the offence and having assessed this witness as she gave her evidence I have no hesitation in accepting her evidence as being both truthful and reliable.
What was done in the park was done at knife point.   Miss Smith was dragged some distance into the park and thrown to the ground.   Her pants and underclothing were removed and the prisoner put his penis into her vagina whilst he had the knife he was carrying against her neck.   After this invasion the prisoner required Miss Smith to fit a condom on to his penis and after another attempt at vaginal intercourse the prisoner turned his victim on to her stomach, pulling her up until she was in a kneeling position and he then had anal intercourse.   Miss Smith was then pulled further away from Baringa Close and again the prisoner penetrated her anus once more whilst still holding the knife.   The prisoner was disturbed by the arrival of Miss Smith's father who pursued him but the prisoner was able to make good his escape.
This was a ruthless sexual attack.   Miss Smith feigned an asthma attack at the outset but her plea concerning this was disregarded.
The Court of Criminal Appeal has on many occasions made it clear that the use of a knife in a sexual attack is a serious aggravating circumstance of an offence.   See R v Horvath, unreported Court of Criminal Appeal, 6 February 1986; and R v Underhill, unreported Court of Criminal Appeal, 9 May 1986; R v Rothapfel, unreported, Court of Criminal Appeal, 4 August 1992.
I can only take an extremely serious view of this particular offence."
It is almost superfluous for me to say that rape of a stranger in her own home is a hideous and appalling offence requiring the strongest possible denunciation and, notwithstanding Mr. Hughan's submissions to the contrary, I am quite unable to take the view that the applicant's sentences viewed globally were verging on the excessive. Nor can it be doubted that, without strongly ameliorating circumstances the applicant's expulsion from Australia is plainly called for.

The applicant submits that taking account of his youthfulness when the crimes were committed, the malign influence of his friends and confederates, his rehabilitation whilst in gaol, the low risk of his re-offending and the hardship both to himself and his family in Australia which his deportation would cause, the exercise of a fair discretion dictates that the application to review should succeed.
To assess these submissions it is necessary to consider the reports of Dr. J. Barry-Walsh, a forensic psychiatrist who provided a report for use when the applicant was to be sentenced by Judge Hassett and the report and oral evidence of Mr. Ball given during the present hearing. Dr. Barry-Walsh expressed the opinion that the applicant suffers from no psychiatric disorder. After observing also that the applicant "must be a significantly different man now, having spent half his life in jail", he said he thought it would be "unwise and speculative" to comment upon his risk [of re-offending].
Between 30 April 2001 and 19 June 2001, the applicant was seen by Mr. Ball who performed a clinical assessment, conducted a number of psychological tests and perused and considered much of the evidentiary material which has been placed before the Tribunal.
Mr. Ball expresses the view that the applicant has an IQ of 70 and has conduct and reading disorders and relational problems. At the present time, without further investigation, Mr. Ball is unable to exclude the applicant as suffering from an antisocial personality disorder in accordance with DSM-IV-TR diagnostic criteria. Mr. Ball is of the opinion that provided the applicant participates in, and successfully completes, treatment over a minimum period of 9 months with the CORE Sex Offender Program the applicant would present a "low" risk of re-offending. The applicant has not been accepted into any such program to the present time and an attempt was made to explain this by reference to restrictions which had been applied to him during his various periods of imprisonment rendering him ineligible to do so. A perusal of copies of his prison records (Exhibit A5) fails to disclose that he ever made application for sex offender treatment during the periods of incarceration covered by those records, and two entries (Exhibit R5 dated 18 May 1998 and R9 undated) tend to suggest that he showed little interest in sexual rehabilitation in gaol.
However he managed to convince Mr. Ball, an experienced and, I think, a fairly objective witness, that he is genuinely willing to address his offending behaviour. Mr. Ball expresses the view that the applicant's rehabilitation is dependent upon his ability to adopt appropriate social and interpersonal skills. He was cautious in attempting to forecast the applicant's prospects of success in these areas due to his childhood experiences in China, his long period of incarceration, his low intelligence and his limited employment skills and literacy training. Mr. Ball had no doubt that the applicant was fully aware of the wrongful nature of his sexual offending at the time the assaults were perpetrated. Like so many such criminals, he thought he could "get away with it".
Mr. Ball also agrees with Dr. Barry-Walsh that the applicant exhibits no evidence of any major mental illness. In type casting the applicant in terms of the classifications provided by Knight and Prentky ("the Rapist Typology (1990)), Mr. Ball suggested that the applicant is Type 2 – Low Social Competence. Mr. Ball said "Mr. Wang's style of sexual offending can be classified as opportunistic. His sexual assaults were impulsive, typically unplanned and seen as a predatory act, controlled by more contextual factors rather than by obvious stylised sexual fantasy … Mr. Wang's behaviour suggests that he was seeking immediate sexual gratification and was willing to use whatever force [was] necessary to achieve his goal. At the time of his offence[s] he seemed to be indifferent to the welfare of his victims". Mr. Ball claimed that sex offenders of this kind have less risk of recidivism than angry or sadistic rapists. In claiming that the applicant was "opportunistic", Mr. Ball may well have overlooked the fact that he pleaded guilty in respect of his first cluster of offences (Victoria) to entering the relevant premises "with intent to commit an offence involving an unlawful and indecent assault".
More significantly however, Mr. Ball conceded under cross-examination by Ms Quayle that, without treatment i.e. at the present time, the applicant should be regarded as having a "high" to "extreme" risk of re-offending.
Whilst I am satisfied by Mr. Ball's evidence that offenders who undergo treatment in the CORE program or similar programs have a substantially reduced risk of re-offending when compared with untreated offenders, I am unpersuaded that the risk posed by the applicant whether treated or not, if released back into the Australian community is one which the female citizens of this country should be expected to accept. As I have already observed, rapes of the kind committed by the applicant are truly dreadful offences which invariable shatter the lives, and often the relationships, of the victims. He committed serial offences, moving from State to State as he did so. Such patterns of behaviour often make detection and prosecution very difficult.
Mr. Ball's opinion of the applicant's likely response to the CORE program was greatly influenced by his belief that the applicant has now shown empathy for the plight of his victims and remorse for his heinous offences. Similar expressions of contrition and regret were made to me by the applicant when he gave evidence. I have very real doubts as to this. I am sure that, despite his low IQ, the applicant has the capacity to understand that expressions of remorse may have a significant bearing upon the outcome of these proceedings. Self condemnation is a step along the road to redemption, but it is also a powerful argument in a case such as the present if genuine. The trouble is that actions speak louder than words, and all we have at the moment are the applicant's words. He may well be dissimulating. I am far from satisfied that he is not. However, in the final analysis I come back again to Mr. Ball's opinion viz that at the present time, even accepting the applicant's declarations of empathy and remorse, he constitutes a high to extreme risk. I am in no doubt that the Australian community would regard the applicant as constituting an unacceptable risk whose abhorrent crimes should require his removal. To do so would be likely to constitute a general deterrent to other like minded offenders.
A large part of the applicant's case was founded upon the proposition that to deport him would mean returning him to a life of extreme hardship in China and would also impose hardship upon the law abiding members of his family who remain in Australia. In respect of this latter proposition, it was pointed out that as the eldest son, the applicant was expected in accordance with Chinese cultural traditions to accept and discharge the responsibility of caring and providing for his parents in their old age. There are a number of obvious responses to this. First and foremost he has done nothing but cause them grief and heartache until now and it is plain enough from his evidence that he saw his father as a strict disciplinarian with whom he had, at best, a difficult relationship. His behaviour after arriving in Australia tends to reinforce this perception. Second, he has two sisters living in Australia who, I have no doubt, will be available to assist his aging parents if necessary and, in any event, it must be observed, Australia has a well developed and generous social security scheme which should provide a more reliable buffer against economic hardship and better health care support than might be expected if the family were still living in China.
A good deal of documentary material was presented to sustain Mr. Hughan's submission that if returned to China the applicant may be retried and/or further punished by the Chinese authorities for the very offences for which he has already been imprisoned in Australia.
Surprising as the submission may seem, it is supported by the passages in the Chinese Criminal Code to which I was referred. It was also apparent that in respect of the sexual crimes for which he has been convicted, the applicant could be sentenced to imprisonment for 10 years or more or even death. The death penalty appears to be not uncommon in China. No evidence was given to suggest how often persons in the applicant's situation who are deported back to their homeland are further punished for extra-territorial offences. It is also noted that the Chinese Code suggests that any additional punishment which the Chinese authorities may be minded to inflict upon a returning miscreant should be ameliorated by taking into account any penalty suffered in the country where the offence occurred.
The applicant claims to be a practising Muslin and suggested that, as such, and having Russian ancestry to boot, he would likely to suffer severe adverse discrimination in China regardless of whether or not he was viewed with disfavour as a returning offender who had embarrassed the Chinese government overseas. The reports from the Department of Foreign Affairs indicate that people with Russian ethnicity may be subject to a small degree of discrimination, but there is little to suggest that practitioners of the Muslim religion (of whom there are many millions in China) suffer any serious problems.
It is perhaps worth noting that if the applicant were to apply for a protection visa as a refugee under the United Nations Convention Relating to the Status of Refugees, he would be excluded from protection by virtue of Article 33(2) and its acknowledgment that treaty obligations do not apply to offenders who have been convicted of serious crimes who may be regarded as a danger to the community. In my view the applicant falls within such a category. In my assessment even if treated successfully he poses a very real risk of recidivism. If he does re-offend, knowing as he now does that deportation would inevitably occur, he could represent a danger not only to the physical well being of his victim, but also to her very life. This represents the other side to Mr. Hughan's argument that knowledge of consequences would act as a personal deterrent to the repetition of offending conduct.
Under the heading of "International Obligations", decision-makers are enjoined by the Minister's Direction No. 9 in respect of criminal deportations to have regard to the prospective consequences of an applicant's return to his country of origin and in particular to the "real risk of violation of his or her human rights, such as being subjected to torture or the death penalty". This proposition is somewhat qualified by the following paragraphs especially paragraph 29, the relevant parts of which I have already discussed, and paragraph 31 which reminds us that "the deportation power must inherently remain a fundamental exercise of Australian sovereignty". There is nothing in the material presented which suggests to me that the applicant faces a real risk of death or other violation of human rights as a consequence of his expulsion. Such a conclusion would be merely speculative. I am fully satisfied that it would be inappropriate to exercise my discretion in favour of the applicant.
In dealing with these issues I have not dealt point by point with the Minister's Direction No. 9 in respect of criminal deportation nor have I drawn a distinction between the primary and other considerations enunciated by the Minister. Mr. Hughan submitted, and I agreed with him, that in light of the present issues arising in respect of Ministerial directions following the Federal Court decision Aksu and Ruhl (notwithstanding the earlier Full Court decisions in Lau and Bustescu) it would be appropriate to deal with the questions that have arisen by taking a balancing approach based upon their perceived individual merit. This I have done. In my opinion the correct decision in this case is to affirm the decision under review.
The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed:         ....K.L. Miller................................................
  Personal Assistant
Date/s of Hearing  30 April, 29 June 2001
Date of Decision   25 July 2001
Counsel for the Applicant         Mr R Hughan
Solicitor for the Applicant          Erskine Rodan and Associates
Counsel for the Respondent    Ms B Quayle
Solicitor for the Respondent    Aust. Government Solicitor