Weleilakeba and Minister for Immigration and Multicultural Affairs
[2000] AATA 704
•17 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 704
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N99/1783
GENERAL ADMINISTRATIVE DIVISION )
Re SUNIA WELEILAKEBA
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr B.J. McMahon (Deputy President)
Date17 August 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
BJ McMahon
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – deportation - conviction and sentence for armed robbery in company, attempt robbery being armed in company, and malicious wounding – serious nature of crimes – high risk of recidivism - expectations of the community that non-citizens who are convicted of crimes that are abhorrent to the Australian community will be removed from Australia – best interest of the child – hardship to deportee and deportee's family – hardship to other Australian citizens – discretion should not be exercised in applicant's favour.
Migration Act 1958 (Cth) – ss 200, 499.
Crimes Act 1900 (NSW) – s 556A
REASONS FOR DECISION
Mr B.J. McMahon (Deputy President)
This is an application to review a deportation order made in respect of the applicant on 31 October 1999 pursuant to section 200 of the Migration Act 1958. Power to make the order arises because the applicant had been in Australia as a permanent resident for less than 10 years when he was convicted for certain offences and was sentenced to imprisonment for a period exceeding one year.
Mr Weleilakeba was born in Fiji on 7 June 1975 and remains a citizen of that country. His father separated from his mother and came to this country with Mr Weleilakeba's brother some time prior to 1986 (he could not be sure of the date). The applicant stayed with his mother in Fiji where he received his schooling. His mother continues to live in that country, together with two sisters and one brother of Mr Weleilakeba.
He came to Australia on 26 January 1994, at the age of 18 years and 7 months, to live with his father and one of his brothers. It was not long after this, however, that he began to get into trouble. He came before a Local Court on 8 February 1996 charged with taking a conveyance without consent. Although he had been charged with another offence (to which I will later refer) at that stage, he had not had any convictions in Australia. He was released by the Magistrate on a recognisance for 12 months pursuant to section 556A of the Crimes Act.
About a month prior to this court appearance, he had been involved in a physical confrontation which led to one of the convictions upon which the deportation order is based.
Early on the morning of 1 January 1996 he had left a nightclub. He was involved in an assault shortly afterwards. Believing that he was the innocent party, he told his father about it and was subsequently driven to a police station to make a complaint and to a doctor for a physical examination. His version of events was not accepted and he was charged with malicious wounding. Ultimately he pleaded guilty to this charge and came for sentence before Judge Graham of the District Court on 18 March 1998, in conjunction with a sentence hearing for other crimes.
His Honour summarised the two versions of the facts as follows:
"To turn to the malicious wounding charge (which, itself of course complicates the situation in the sentencing of Weleilakeba): That occurred on 1 January 1996. It appears to be common ground that it occurred after the prisoner had been ejected from a nightclub in Newtown. There are differences in the accounts of the witnesses (including the victim) and that of the prisoner. The prisoner relies upon provocation as justifying some leniency in his case.
To summarise his version of events, he says that he was ejected from the club with some violence by a number of people associated with the club, the violence including being thrown down the stairs and being set upon and assaulted a second time at the foot of the stairs of the club. He identifies the victim of the malicious wounding as one of the assailants. Essentially, he says that the wounding took place as part of a continuing incident in which he was pursued along the street by a number of people associated with the club. He says that he was confronted by the victim with a bottle. He says that he himself took hold of a bottle and, as the victim was walking away, he set upon him and struck him with the bottle.
The Crown case is that the prisoner was ejected from the club, but without conceding that he was subject to any untoward violence in the course of that ejection. I will come back to that aspect in a moment. Secondly, the Crown case is that, as emerged from the statement of the victim and other witnesses, there was no continuing event, but rather the victim and a companion, who was not an employee of the club, left a few minutes after the ejection of the prisoner to go to a nearby convenience store. The Crown case is that the victim was then confronted by the prisoner who had a broken bottle and who lunged at him. The Crown case is that the accused's version ought not to be accepted in circumstances, where there are a number of statements in the Crown brief which corroborate the victim's account, and where the Crown witnesses were available for cross-examination today, if required."
Mr Weleilakeba relied upon provocation as part of his defence. The Judge, however, rejected his version, for reasons which he detailed, and then went on to recount the facts as he found them.
"I do not accept that the victim was himself armed with a bottle. His description of the incident should be accepted. That is, that he saw the prisoner about ten metres away, standing outside a cinema, holding a beer bottle, which he then smashed against the wall of the cinema. He approached the prisoner and asked what the cracked bottle was for and says that the prisoner told him, "This is what you want, for me to be thrown out like this. If anyone comes close to me I will stab them." The victim told the prisoner to go home; if he wanted to come back to the club it would have to be some other day. The victim turned around and began to walk back towards the club when he felt a blow to the back of his head, which caused him to stumble forwards. He regained his balance and turned around to face the prisoner, who was still holding the cracked bottle in his right hand. The prisoner swung at the victim's stomach but the victim placed his left arm in the front of his stomach to protect himself. The prisoner then forcibly pushed the cracked beer bottle into his left forearm, which penetrated to the bone, causing the tendons and veins to be cut. The wound bled heavily as a result of the attack. The victim then ran back to the club and collapsed onto the footpath, where he was assisted by staff from the club, who called an ambulance to attend. The victim received thirty-eight stitches to the wound in his left forearm. Photographs would indicate that it is a very substantial and grossly disfiguring wound, which would be clearly apparent to anyone seeing the forearm of the victim. The nature of the wounding which was inflicted in this case was thus quite serious and, subject to the question of provocation, would require a substantial sentence, particularly having regard to the nature of the item which was used to inflict that wound."
Although charged with the offence of malicious wounding in January 1996, the applicant did not answer the bail which he was given and absconded. It was not until he was arrested in connection with other crimes that the charge of malicious wounding was dealt with on 18 March 1998.
There were two other crimes, committed in September and October of 1997. The first crime resulted in a charge of armed robbery in company. Mr Weleilakeba, Mr Basaga and a juvenile were involved in the robbery of a bottle shop. There was some confusion as to whether the weapon used was a screwdriver or a knife. So far as the victim was concerned, that does not seem to matter a great deal.
The facts as found by His Honour were as follows:
"The offence on 20 September 1997 is charged in slightly different terms as between the two offenders. In the case of Basaga, his indictment refers to an armed robbery with a screwdriver. In the case of the co-offender, the offensive instrument is described as a brown handled bladed folding knife. On that occasion, the two offenders, together with a juvenile (who was dealt with for these matters by way of probation for offences of robbery in company dealt with in the Children's Court) went to the Liquorland Bottle Shop at Belfield. Weleilakeba placed two bottles of drink on the counter and asked for a packet of cigarettes. The victim, a 62 year old woman who was working as a shop assistant in the store, turned to get the cigarettes, when that offender went behind the counter and produced a screwdriver (as it is described in the statement of facts relating to Basaga) or a knife (as it is referred to in the statement of facts in relation to the co-offender).
I note that the victim herself said that she could feel something poking into the right side of her neck, but was unable to say what it was. The male witness, Mr Robertson, said that the person with his arm around the female victim's neck was holding a clear red plastic screwdriver to the right side of the neck. He described it as about 12 inches in length with a fine shaft end tip.
As I understand it, the prisoner himself has disputed having a knife on that occasion, and it seems that the description in the indictment should I think be disregarded in favour of the evidence as it stands before the Court. The offender Basaga gave evidence today about a screwdriver, and Mr Robertson's statement seems to identify the item as a screwdriver. In the face of the original denial of the prisoner that there was a knife, the offensive instrument should be regarded in the case of each of the offenders as being the screwdriver which was carried by the prisoner Weleilakeba. That prisoner demanded money from the till and Mr Robertson was then grabbed on the shoulder by the offender Basaga. Mr Robertson was required to open the till and money, $433 in cash, was taken from the till. The three offenders then left the store.
There is no evidence as to any long-term effects on the victim of that offence, though it is fair to act upon the assumption that not only was she put in fear, an element of the offence, but that the experience would have been a most distressing experience for her. As to any consequences beyond the transient impact of the offence, there is no evidence, though, again, it is I think proper to assume, without evidence, that in relation to an offence such as this, there is a possibility that some form of significant psychological harm could flow from involvement in the offence; but the circumstances of the case would not allow the Court to go beyond that broad and generalised assumption."
The effect on the victim of the robbery was replicated in the reaction of the victim of the next incident. This resulted in a charge of attempted robbery in company. The facts relating to that incident and to the effect on the victim were set out by Judge Graham as follows:
"About two weeks later, the attempted armed robbery took place at the clinic in Camperdown. The three offenders again went to those premises in the afternoon. The prisoner Weleilakeba told the staff that his girlfriend was there having a procedure. When told that there were no appointments that afternoon, he produced a knife and demanded money. The victim started screaming and other members of staff, including nurses, came to inquire as to what was occurring. One of the nurses was seized by Basaga, who says that he was in a waiting room until he heard the commotion and the screaming, and decided to intervene. The nurse describes the actions which the prisoner Basaga said were his, as involving him seizing her tightly and then letting her go and running from the premises.
The victim named in the indictment was the person who was confronted by the prisoner Weleilakeba. She describes in a victim impact statement, the effect of this incident on her. She describes having a knife at her throat, stepping back in shock, but being grabbed by that man and pushed onto the desk. She could see the knife coming down at her so she screamed, and one of the nurses ran in but was grabbed by one of the other two men. The letter is the incident involving the prisoner Basaga. She remembered lying on the floor with the prisoner Weleilakeba standing over her, asking for money. Her statement also acknowledges that, once the offenders realised that some assistance was forthcoming from the other members of staff, they ran out of the building. Miss Cheke says (in an undated victim impact statement which appears to have come into existence on or before 4 December last year) that, when she got up from the floor she felt excruciating pain in her lower back, and found that her glasses were on the floor with a damaged frame. She said that worse than the physical harm was the mental effect, she said she was "just a bundle of nerves", and that this incident had changed her into a nervous person, suspicious of every man entering the door at the centre in which she works.
She indicated that she refused to be left alone at work, which has reduced her efficiency as an employee. She says she has recurring dreams of the event, which has caused a change in her sleeping pattern. She is also nervous and irritable at home and refuses to be alone, which, in turn, has placed a strain on her marriage. She acknowledged having receiving what she describes as "excellent" counselling, which she said had helped a little. However, whilst she would persevere to overcome her fear, she indicated that the whole ordeal could not be forgotten."
Both the bottle shop and the clinic incidents involved the use of offensive weapons. His Honour observed that this heightened the seriousness of the incidents.
"Each of these offences was serious in that an implement, in one case a screwdriver, and in the other, a knife, was held to a female victim. The use of knives, in particular, in the course of offences is a matter of considerable aggravation when it comes to assessing the criminality involved in offences."
His Honour had already commented on the use of a broken bottle in the earlier incident. All three crimes have involved weapons which are held, by the Australian community, in particular abhorrence.
The extent of criminality was further aggravated by the fact (as Judge Graham found) "that he had skipped bail in relation to the malicious wounding charge, having failed to appear at court when required to do so some time before the offences in September and October 1997". His Honour also found that in the gang of three, the role of Mr Weleilakeba was dominant in the actual execution of the offences.
In relation to the bottle shop robbery, he was sentenced to 18 months imprisonment with an additional term of 2 years and 6 months. The same sentence was imposed in respect of the attempted robbery at the clinic. In relation to the malicious wounding charge he was sentenced to a fixed term of 18 months. All of the sentences were to be served concurrently.
The Crown appealed to the Court of Criminal Appeal against the leniency of these sentences. On 19 August 1998, they were set aside and replaced with concurrent sentences of 3 years, with an additional term of 1 year. The head sentence is due to expire on 2 October 2000. In effect, the sentences were doubled. The Court took account of the circumstances of the crimes and the implements used in the commission of them. In doing so, the Court expressed the general community view of such methods. Meagher J (with whom McInerney J and Barr J agreed) said:
"Attempted robbery and like offences are offences of the utmost gravity which Parliament had intended should be dealt with severely and to which the Courts have always shown their displeasure. In particular, in circumstances like the present where innocent people have been held at knifepoint or the equivalent, and where violent implements have been used, in each case a custodial sentence for some years is, in my view, called for. In my view in the case of all five convictions the appeal should be allowed and the sentences below set aside."
By 2 October 2000, the applicant will have spent almost half of his time in this country in prison.
In reviewing a section 200 deportation order I am bound to take into account a Ministerial Direction given under section 499 on 21 December 1998. This Direction sets out two primary considerations, namely the expectations of the Australian community and the best interests of any relevant child. There are two aspects to community expectations, namely the expectation that the community will be protected and not be put at risk and the expectation that non-citizens who are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
As to the protection of the Australian community, the Direction sets out these guidelines:
"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 that the rights of the community are carefully considered when making decisions relating to 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.
It is the Government's view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection:
(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."
There can be no doubt that the crimes for which the applicant was convicted were serious. The Government considers certain crimes to be particularly serious. These include organised criminal activity, armed robbery (including robbery involving the use of imitation weapons) and crimes of violence against persons. Mr Weleilakeba's crimes fall into all of these categories. The bottle shop and the clinic incidents took place in the course of activities by an organised gang of three. The bottle shop incident resulted in an armed robbery as defined. All his crimes involved violence or the threat of violence.
That being so, I am bound to consider the risk of recidivism. It was urged upon me that his conduct while in prison gave reason to hope that he would not re-offend upon his release. In my view, his record has been mixed. Of course it is not possible to predict the future. I am, however, called upon to make the best possible assessment of the likelihood of re-offending. In doing so, it is necessary to balance those factors which point to reform against those which signal danger.
Whilst in prison he has undertaken a number of courses, particularly those connected with the building industry. He has achieved a welding ticket and he has hopes of becoming a quantity surveyor one day. A number of prison reports which were tendered in evidence refer to his positive attitude. He was variously described as "a well-behaved inmate who is responsible and sets a good example to others", "a quiet articulate inmate who goes to church service regularly and appears determined to use his time effectively" and one who "has consistent enthusiasm, is motivated and is a self-study student".
As a result of his good behaviour, his classification has been changed from time to time. He was allowed to attend a less-supervised course at Oberon and currently lives in what he calls the Honour House at John Morony Correctional Centre with other prison-worthy inmates.
A Salvation Army Chaplain who gave evidence on his behalf attested to his regular attendance at services and to the "outstanding change [which] came into his life when he was soundly converted to Christianity". He involves himself in prayer meetings and bible study classes.
Against these encomiums, however, I have to consider a number of other features of his prison life. He was convicted and disciplined for the following offences on the following dates:
"(i) Unauthorised phone calls 11.05.98
(ii) Drugs in Urine 05.07.99
(iii) Poss/drink Alcohol 09.07.99
(iv) Fail attend muster 04.10.99
(v) Damage property 05.01.00
(vi) Abusive language 01.02.00"
Matters (i), (iv) and (v) appear to be of a minor nature. (vi), however, is more disturbing. It occurred well after the deportation order had been made when the applicant might be expected to order his conduct as if it were under scrutiny.
According to Nurse Reynolds, he attended at the clinic on 1 February 2000 after hours. When he was refused attention, he is said to have argued with the staff and eventually raised his finger in an obscene gesture. In her complaint to the area manager, Nurse Reynolds said:
"Nursing staff are no longer willing to tolerate this inmate's attempts to bully and intimidate, his use of bad language and his generally unacceptable manners and behaviour, and wish to have this noted as a formal complaint.
Further to this nursing staff withdraw their services to Weleilakeba, with the exception of life-threatening situations, until he offers suitable written apology, and demonstrates a change of attitude and behaviour.
As a result of the prison officer's report, he was found guilty and was ordered to apologise and was suitably reprimanded and cautioned.
By way of apology he wrote:
"As a result of this morning incident I Sunia Weleilakeba would like to apologise for being disrespectful.
I believe that it won't happen again. I'll try my very best to control my hand so it doesn't cause any more misunderstanding.
Have a happy 21st century.
Thank you."
In reply, Nurse Reynolds wrote:
"Because nursing staff know you so well, your sarcasm in the latter part of your statement has not gone unnoted. This is typical of your overall attitude.
Your hand gesture was not misunderstood. It was an obscene gesture directed at nursing staff. Please do not insult our intelligence by attempting to pass it off as anything else.
Further to this, one would hope you do not have to try too hard to control your hand.
In conclusion, our happiness for the 21st century is in no way dependent on your rather suspect good wishes. A straightforward apology demonstrated by good behaviour is all that is required of you.
Once more without the funnies Mr Weleilakeba."
Following this letter an unreserved apology was written and was accepted by Nurse Reynolds.
Mr Weleilakeba said that he had been taking courses in prison in ways to control anger and considered that he had overcome his obvious short temper. From this incident, it is clear that he still has a good way to go. The ever-present threat of anger gives cause for concern at the possibility of future violence. Without details and without a thorough investigation of the incident and his prior conduct towards the nursing staff, it is difficult to say how much weight should be given to these events. In evidence before me, Mr Weleilakeba denied that he had ever used bad language, nor had he attempted to bully or intimidate nursing staff. He said that Nurse Reynolds had confused him with other inmates with whom he used to associate. I do not accept this denial. It was not raised at the time when he was called upon to give his account by the prison officer in response to the complaint. It was not referred to in the two written apologies. The likelihood is, therefore, that the complaints were warranted. The facts alleged are an indicator of Mr Weleilakeba's behaviour even when under prison supervision. It is a worrying indicator of his likely conduct when he is free of that supervision.
The most disturbing aspect of the applicant's prison record, however, relates to offences (ii) and (iii). He admits that he was taking drugs and drinking alcohol. The only excuse which he advanced in evidence before me was that he was naive at the time. This is hardly a satisfactory explanation. The Chaplain, who gave evidence, said that drugs and alcohol were freely available within the prison system. He said the fact that Mr Weleilakeba had not been convicted more than once for each type of drug indicates that he was resisting temptation. I do not consider that this inference is open. Proving a negative is no way of establishing the opposite positive. Drugs, alcohol and violence have been associated with all his crimes. It was the opinion of a psychologist tendered before Judge Graham that he was likely to overcome his drug and alcohol problems. His Honour referred to the psychologist's evidence as follows:
"The pre-sentence report is supplemented by some further reports obtained on behalf of the prisoner, including the medical reports to which some reference has already been made. A clinical psychologist, Mr Kesby-Smith, has reported on 3 March 1998. He indicates that the prisoner expressed much remorse for the harm to the victims of the robberies, talking about his shame for those offences. He impressed Mr Kesby-Smith as an intelligent, insightful and articulate man. His prognosis was considered to be very good, particularly if he could complete his education, maintain some employment and enjoy his family life. Mr Kesby-Smith thought that there were two reasons why it would be unlikely that he would resort to alcohol and marijuana abuse in the future. The first being his powerful sense of pride, dignity and ambition; the second being his re-integration into the family unit. He has a desire to provide a functional life for his own children. He is regarded by Mr Kesby-Smith as not being a danger to the community, having the necessary self-control and tolerances to frustration to negotiate the ordinary demands of everyday living; although he might further benefit from some counselling. Despite that, Mr Kesby-Smith thinks that he has gained the necessary insights, motivations and self-controls to adequately and appropriately determine his own life."
It will be noted that Mr Kesby-Smith reported on 3 March 1998, just two weeks before the applicant was sentenced. The following year, he was again taking drugs and alcohol. He was again exhibiting an absence of self-control and tolerances to frustration.
Mr Kesby-Smith made reference to the applicant's re-integration into the family unit. Clearly, the fact that he was living with his father and brother when he first came to Australia had no effect in insulating him from crime. His father gave evidence that he blamed himself but considered that if Mr Weleilakeba were released, he would again live with his father who would "do everything to put him on the right path". Having regard to his past record in controlling his son, I have no confidence that he would be able to assist him to avoid crime in the future.
His principal family life is likely to revolve around his present fiance, Willy Ana Low and his daughter Samanunu Livema Nefer Weleilakeba, who was born on 3 May 1998 in Sydney.
Ms Low was born in Fiji and came to Australia with her family at an early age. She is not an Australian citizen and presently does not hold permanent residency status. In the course of interviews prior to these proceedings, she became aware of her unlawful status. On 1 May 2000, she lodged an application with the assistance of a solicitor which she hopes will legitimise her presence in Australia. That application has not yet been dealt with. Although she is optimistic, it is of course impossible to predict the outcome with certainty.
She first started keeping company with Mr Weleilakeba in July 1995, having met him at a nightclub where she worked. She said that they grew quite close from then on, although at no time have they lived together. She was aware, as the applicant's father was, of the altercation outside the nightclub on 1 July 1996. She was also aware that the applicant was charged with malicious wounding as a result of this incident and was granted bail. It does not seem to have concerned her that he failed to meet his bail and to attend court to be dealt with.
In September and October 1997, when the bottle shop and clinic crimes were committed, she was approximately 2 or 3 months pregnant. Notwithstanding their close relationship at the time, Mr Weleilakeba was still pursuing a pattern of crime with other members of his gang. He apparently did not tell her of these violent incidents in September and October 1997. She did not come to know of them until after he had been dealt with by Judge Graham and had been sentenced to prison. She found out about the incidents by reading of them in the newspaper. It was only after he had been sent to Silverwater prison that the applicant telephoned her to advise of his predicament. She then visited him regularly and has continued to do so. After Samanunu was born, the child, on occasions, would also accompany her.
Once again, if Ms Low had such little influence in preventing the applicant's criminal conduct, how can one be confident that she will fare any better in the future, even if they are married as they plan?
Having regard to these factors, I consider that the risk of recidivism is high. That risk, of course, must be balanced with other considerations. One of the primary considerations is the community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community. It is expressed in the Ministerial Direction in these words:
"It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. Decision makers should have due regard to the Government's view in this respect."
The nature of Mr Weleilakeba's offences are grave. Taken in isolation, the Australian community would regard them as sufficient in themselves to warrant deportation. I am, however, to have regard to the other primary consideration, namely the best interests of the child.
At the present time, Samanunu is aged approximately 2 years and 3 months. She is an Australian citizen, having been born here. Although her contact with her father has only occurred whilst he has been in prison, it is natural to assume that a bond has been developed between them. In the nature of relationships, this bond is probably stronger in the applicant than in his daughter. In the year or so during which Samanunu may have become conscious of people and surroundings other than her immediate environment, she has seen her father for only a few hours perhaps twice a month. Even during that time, visits have been carried out in a strange, non-domestic environment. Mr Weleilakeba, therefore, is probably more attached to his daughter than she is to him. As the Ministerial Direction puts it, however, the starting point for any consideration of the best interests of the child would be that the child's best interest will be served if she remains with her parents. This observation is best understood in the context of an orthodox living relationship between the child's two parents, with the child in a domestic setting. In this case, the only home which Samanunu has known is with her single mother. There is no reason to consider that Samanunu has received anything other than love and affection from her mother. Ms Low is employed in a responsible position as an advertising co-ordinator for Australian Consolidated Press. She clearly wishes to pursue a career in Australia and does not wish to return to Fiji. If the applicant is deported, it seems to me that the likelihood is that he will be separated from Samanunu who will stay with her mother.
In view of the sketchy contact she has had with her father so far during the course of prison visits, it is reasonable to assume that she would not be affected to the same extent if he returned to Fiji as she would be if she experienced living with him on a day-to-day basis.
If she returns to Fiji with her mother and the applicant, her best interests will not be greatly affected until she grows older. She would then be deprived of the advantages which she is entitled to expect as an Australian citizen. Ms Low did not seem even to contemplate that her daughter would be left behind in the care of the applicant's father.
On balance, it cannot be said that the best interests of the child would be served by the deportation of her father. Nevertheless, the ill effects which she might suffer are not as great as those which an older child might undergo. Furthermore, her best interests cannot be viewed in the same light as those of a hypothetical child who had lived with its parents on a regular domestic basis since birth.
Apart from these two primary considerations, there are other matters which I am bound by the Ministerial Direction to take into account. The first of these is the degree of hardship which may be suffered by Mr Weleilakeba. That hardship will depend upon whether Ms Low decides to marry him and to travel to Fiji with him and their daughter. If she decides against this course of action, then he will suffer hardship caused by the separation. It was difficult to determine on the evidence whether this will happen as neither the applicant nor Ms Low had really thought about the prospect. I had the impression that neither wished to face this possibility and therefore dismissed it from their minds.
The applicant still has strong family ties in Fiji. He remains close to his mother, who came to visit him last year, before returning to Fiji. Two sisters and one brother live in that country. With his trade qualifications, he should be able to obtain employment. He was formerly working for his uncle in a restaurant. His evidence was that this uncle continued to run the restaurant and it was possible that he could obtain employment there. By contrast, the strength of family ties in Australia lies only with his father and his other brother (about which brother there was no evidence). There was also no evidence of any business ties with this country, nor of any other social ties outside his relationship with his father. His father has been active in Fijian church circles in Sydney, but because of his circumstances, the applicant has been precluded from this particular religious association.
I am also to consider the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family. I have to assume at this stage that Ms Low is not a permanent resident. I cannot assume that her application will be successful. It is a fact that she is not an Australian citizen.
As the mother of the applicant's child it is inevitable that she will suffer distress if the applicant is deported. Her concern, however, cannot be put at such a level that she would unequivocally commit herself to following him to Fiji with their daughter. She is a bright, intelligent woman with a responsible job and hopes for a promising career. There is no real evidence that she would sacrifice that career and incur that degree of hardship.
The nature of the applicant's crimes are such that they alone would justify deportation to fulfil the expectation of the Australian community. For the protection of that community, a high risk of recidivism also points to the desirability of deportation. The degree of adverse effect on the applicant's child is, in my view, outbalanced by these other primary considerations. The degrees of hardship to the applicant and to others which I have discussed are secondary considerations and, on balance, are much less important that the primary considerations which I have discussed.
Having regard to these matters, the decision under review should be affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President).
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 04 July 2000
Date of Decision 17 August 2000
Solicitor for Applicant Mr Ray Turner
(Tzovaras Legal)Solicitor for the Respondent Ms Jodie Maurer
(Australian Government Solicitor)
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