Percerep and Minister for Immigration and Multicutural Affairs [1999] AATA 1 (6 January 1999)

Last Updated: 29 January 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 1

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o V98/1128

GENERAL ADMINISTRATIVE DIVISION )

Re SLAVKO PERCEREP

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Dr P Gerber (Deputy President)

Date 6 January 1998

Place Melbourne

Decision The Tribunal affirms the decision under review.

..............................................

(P Gerber)

Deputy President

CATCHWORDS

MIGRATION - deportation - applicant migrated to Australia as a minor with his parents from the former Republic of Yugoslavia - history of repeated criminal convictions and imprisonment since adolescence for crimes including armed robberies with violence - warning given - deportation order issued - review by Administrative Appeals Tribunal in 1990 recommending that deportation order be revoked - subsequent deportation order issued - criminal deportation policy - factors to be taken into account - decision affirmed.

Migration Act 1955 ss 200, 201

Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98

Ogilvy and Mather Pty Ltd v FCT (1990) 21 ALD 79

Re Percerep and Minister for Immigration, Local Government & Ethnic Affairs (1990) 20 ALD 669

Minister for Immigration, Local Government & Ethnic Affairs v Kutovic (1990) 92 ALR 93

R v Percerep [1993] 2 VR 109

Statham v FCT 98 ATC 4070

Crommelin v FCT July 1998 FC No 980878

REASONS FOR DECISION

6 January 1998 Dr P Gerber (Deputy President)

1. This is an application by Slavko Percerep ("the applicant") for review of a decision by a delegate of the Minister pursuant to s 200 of the Migration Act 1955 ("the Act"), dated 2 March 1997, ordering that the applicant be deported from Australia. He is currently on parole in respect of a sentence for armed robbery, attempted armed robbery, recklessly causing injury and damaging property, albeit kept in immigration detention at Port Phillip Prison awaiting the outcome of this review.

2. Ss 200 and 201 of the Act relevantly provide as follows:

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, has 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

(ii) ...

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

section 200 applies to the person.

3. The applicant is a citizen of the former Republic of Yugoslavia, born in Belgrade on 28 September 1960. After spending his early years in Bosnia, he arrived in this country as a migrant in August 1971, aged ten years with his parents and younger brother (who has since been diagnosed as suffering from schizophrenia). His elderly parents, both Australian citizens, reside in Wodonga on a pension, both are said to be in ill health. It seems the father is an alcoholic who has been unemployed for years.

4. The applicant's early schooling in this country was troublesome, largely due, so it was claimed, to his lack of English ("I was given a hard time by Australian kids and found myself in a lot of trouble with the kids at school. They picked on [me], called [me] names and I eventually got myself into trouble for fighting with kids at school"). By the time he was 13 years old, the applicant had gravitated to using marijuana and was sufficiently unsettled to the point where his mother decided to return with him to Yugoslavia. However, the four months spent there with his grandparents only served to exacerbate his problems and he and his mother returned to Australia in September 1976.

5. The applicant left school in 1976 in grade 9, aged 16 years and started off on his journey of criminal behaviour. In May 1976, he was charged on two counts of burglary and handling stolen property, both charges being adjourned for 52 weeks. On 23 March 1978, he was convicted in the Williamstown Magistrates Court of handling stolen goods and theft of a motor cycle (3 charges) and placed on two years probation. On 15 June 1978, ie whilst on probation, he was convicted of theft of a motor car (3 charges), handling stolen goods and driving whilst unlicensed and ordered to be detained in youth training (YTC) for 3 months. On 23 June 1978, he was convicted of "loiter with intent" and sentenced to 14 days jail. On 1 August 1978 he was convicted of robbery in the Melbourne County Court and sentenced to 12 months YTC. On 12 September 1978, he was convicted of burglary and sentenced to 6 months YTC. On 2 December 1978, he was convicted of breach of the probation order of 23 March 1978 and sentenced to one month YTC. In April 1980, he was convicted on charges of possession and smoking Indian hemp and fined. In July 1980, he was convicted of drink driving. In November 1980, the applicant failed to appear in the Williamstown Magistrates Court on charges of theft of a motor car and driving whilst disqualified and a warrant was issued for his arrest. I am unable to say from the records whether the warrant was executed. Be that as it may, in January 1981 the applicant was convicted of malicious injury and ordered to be imprisoned for 21 days. In April 1981, he is again before the courts on charges of larceny of a motor vehicle (5 charges). On charges 1 and 2, he was ordered to be imprisoned for 14 months; charges 3 and 4 resulted in a sentence of imprisonment for 8 months, and 20 months jail on the fifth charge. In addition, he was sentenced to 2 months jail for larceny and 8 months jail with hard labour for possession of stolen property.

6. The applicant was no sooner released from jail when he was once again before the Magistrates Court on 2 February 1983 and convicted of theft of a motor car and given a sentence of six months jail. On the same day he was convicted in the Prahran Magistrates Court of unlawful possession (3 months jail), giving a false name and address ($50 fine) and "habitual consorting" (1 month jail). The very next day (3 February 1983) he was convicted on a charge of goods in custody and given a sentence of one month jail with hard labour.

7. This litany of offences against person and property resulted in a warning from the (then) Department of Immigration and Ethnic Affairs that "the commission of any further offence on your part will lead to the question of deportation being considered". This warning was treated with contumelious disregard by the applicant, who again appeared before the Castlereagh Court of Petty Sessions on 4 May 1983 and convicted of living off the earnings of prostitution. On 7 August 1984, he was convicted in Box Hill of burglary and theft and sentenced to one month jail on each count. On 22 January 1985 the applicant was convicted in the Prahran Magistrates Court on a charge of "loiter with intent" and sentenced to 14 days jail.

8. From hereon, the applicant, who might up till now be described with some degree of charity as a "petty criminal", albeit a repeat offender, gravitates to more serious crimes. On 26 July 1985, he committed armed robbery at the National Australia Bank at Malvern. For reasons not easy to comprehend, he was granted bail on 20 August 1985. Three days later, ie whilst on bail, he committed a further armed robbery at Boccaccio Cellars Pty Ltd, a licensed supermarket in Balwyn, and yet another armed robbery at the State Savings Bank at North Sunshine. It seems that the applicant and his co-accused then fled to Perth and (semble) raided a methadone production plant in September. The pair were apprehended by the police in Perth and questioned about the Melbourne armed robberies (see folio 564 of the appeal book). They were subsequently extradited to Victoria (see Re Percerep and Minister for Immigration, Local Government and Ethnic Affairs (1990) 20 ALD 669 at p 676). The record shows that the applicant was convicted in Melbourne on 13 September 1985 of burglary and sentenced to three months jail.

9. The applicant came before the County Court at Melbourne on 29 November 1985 and pleaded "guilty" to the three charges of armed robbery and was sentenced to 8 years jail on each of the three counts. In addition he was sentenced to 18 months jail of two counts of theft - a total of 9 years jail with a minimum of 7 years. (It is these offences which are relied on for his deportation, notwithstanding that an earlier deportation order, based on these same offences was set aside by this Tribunal; supra (1990) 20 ALD 669 and see Minister for Immigration, Local Government and Ethnic Affairs v Kutovic (1990) 92 ALR 93).

10. Whilst in jail, the applicant was advised by the Department on 24 March 1988 that he has "become liable to deportation from Australia". He was interviewed by a departmental officer on 7 April 1988, to whom he claimed that all his previous offences were "drug related", that he was now drug free and has "done courses". This, as we now know, was a lie in that he continued to abuse drugs. In any event his alleged "reformation" failed to persuade the Department, which issued a deportation order against the applicant on 1 September 1989.

11. As already noted, the applicant appealed the order to this Tribunal, and the matter came before Deputy President Thompson on 19 June 1990. The learned Deputy President, after noting the long list of armed robberies, revoked the deportation order notwithstanding his finding that "the risk of reoffending is essentially related directly to the risk of his again becoming addicted to drugs. That risk is more than minimal." Deputy President Thompson had before him a report from Mr Healey, the psychologist who again appeared before me, who had noted in his report, prepared for the hearing, that the applicant "was no longer addicted to drugs, although he admitted to occasional use of heroin." In parenthesis, I might note at this point that when I told Mr Healey, who again appeared before me, that I had some difficulty comprehending this statement, he conceded:

"Of course, that is an illusion, really. ... even an occasional use of heroin reflects upon an addiction to the substance. It is not really possible to have an occasional use of heroin and not be addicted in some way. ... Once a heroin addict, always a heroin addict .

In cross-examination, the witness was to add:

"And in my view [this man] will always be [a heroin] addict, yes, that's true. That vulnerability will remain with him." (p 29 tr)

12. It is with no disrespect to the Learned Deputy President to observe that the decision is an object lesson that this Tribunal, albeit free to do so, should depart from government policy with some degree of caution, and only in special circumstances, particularly when the crimes involve three armed robberies accompanied by threats of violence.

13. Pausing here, it is now conceded before me that the applicant's sworn evidence before Deputy President Thompson, namely that he was cured of his drug addiction, was false and advanced deliberately to hoodwink the learned Deputy President into that belief. Two days after the deportation order was set aside (21 June 1990) the applicant was released on parole.

14. On 16 October 1990, whilst on parole, the applicant was convicted of theft and fined $250. The litany of offences continues.

15. On 25 April 1991, the applicant commits another armed robbery at the BP Service Station at Ferntree Gully. He is apprehended and charged, pleading "not guilty" and standing mute at his trial (the fact of the robbery was admitted before me). The jury convicted on all counts and the applicant sought leave to appeal the decision to the Victorian Court of Criminal Appeal (R v Percerep [1993] 2 VR 109), inter alia, on the issue of identity, neither victim having been able to positively identify the applicant, who was wearing a balaclava, rubber gloves, a dark motor style cycle jacket and overalls.

16. It seems that the applicant's conviction was based on a DNA analysis of his blood (he was wounded in his effort to escape through a locked glass door, which he had smashed with a car battery), evidence which, so it was claimed, should have been excluded by the trial judge as "inherently unreliable". The application was dismissed

17. On the facts recorded by the judge, the robbery involved a considerable degree of violence, including the firing of several shots by the applicant, who succeeded in hitting and seriously wounding a friend of the petrol station attendant who happened to be at the service station, requiring surgery to remove the bullet. The applicant was arrested when seeking treatment at a Public Hospital for the injury he suffered whilst escaping through the glass door.

18. It was claimed before me that this robbery was a "spur of the moment decision". This led to the following questions and answers:

The Deputy President: Where you masked?---Yes, I was

The Deputy President: Presumably you had anticipated the possibility that you would undertake a robbery. It was not a spur of the moment exercise was it? You had a revolver in the boot [of the car] plus a balaclava?---And a pair of overalls.

The Deputy President: Yes, so it wasn't a spur of the moment decision, was it? You had equipment in the car to do a robbery?---Well that's correct. I have a number of times robbed drug dealers. I many time put on a balaclava and grab my gun and ran into a drug dealer's place and robbed them.

Mr Gray (counsel for the applicant): As a result of this incident, though, that was on an innocent law abiding service station, you were convicted of recklessly causing serious injury?---Yes

Mr Gray: And of armed robbery and attempted robbery. How do you feel about what you did now?---How do I feel? I feel embarrassed. I feel I've been punished for that crime that I've committed. I feel that I have served my time and I feel that I'm rehabilitated. I have come a long way since then. I feel that I'm in a completely different frame of mind than I used to be then."

19. The above suggests that even now the applicant is incapable of showing any empathy for the suffering he has caused to two innocent law abiding victims who happened to be at the service station whom he terrorised and shot at, or, for that matter, the bank customers whom he threatened with a gun during one of these armed hold-ups ("hurry up, hurry up, fill the bag with notes or I'll blow your brains out"). His Honour Judge Hewitt, who presided at the applicant's trial for the bank hold-up and viewed the bank's videotape, could not restrain himself from noting that: "goodness knows, looking at those other people what effect it may have had on them. It is a pitiable sight." For the applicant now to claim that he feels "embarrassed" and "has been punished for the crime I've committed" shows that he is unable to feel remorse or contrition, and indicates that his "different frame of mind" has changed little, if at all, from his previous persona. If "embarrassment" is all he is capable of feeling for his earlier violent behaviour, I fear it augurs badly for his future. I should add that in answer to leading questions by Mr Gray, the applicant claimed to "regret" what he did. ("With the insight that you have now, do you regret what you did?---I do very much". "Do you feel deep regret about what you did?---I do, I do"). Leading questions in evidence-in-chief tend to produce those kind of answers, a good reason why the law discourages them.

20. Returning to the applicant's serial criminal behaviour, the attack on the BP Service station in Ferntree Gully led to sentences of nine years jail for the armed robbery, 6 years for attempted robbery, 3 years for causing serious injury and 1 month for damaging property; a total sentence of 9« years with a minimum of seven years. Ex abundante cautela, his revolver was ordered to be forfeited.

21. On 12 October 1992, the applicant was convicted at Prahran Magistrates Court of theft of a motor car and sentenced to 9 months jail, 2 months jail for unlawful possession and the cancellation of all his driving licences.

22. On 13 October 1992, the applicant was convicted of "going equipped to steal" and given one month jail and 14 and 3 days jail respectively for possessing drugs of dependence on different occasions, and 1 day jail for use of drug of dependence.

23. In addition, there were two reported "incidents" said to involve the applicant. The first one (8/12/1996) relates to one Janet Taylor who, intending to visit the applicant, was arrested in the car park of the jail and found to be in possession of a modified syringe, a spoon and some white powder thought to be narcotics (the applicant admitted the "powder" was one cap of heroin, claimed to be for Taylor's own use; p 88 tr). The other incident (July 1997) resulted in the applicant being transferred to another unit pending investigation of alleged involvement in drug trafficking within the Bendigo prison.

24. The applicant having denied that the cap of heroin found in Ms Taylor's handbag was for his own use and the other "incident" being based on scuttlebutt, I propose to ignore both incidents from my consideration.

25. Finally, in August 1997, the applicant returns a positive urine result for benzodiazapines (half a Rohypnol tablet, said to have been taken to ease his back pain). This resulted in him given the status of "Identified Drug User".

26. On the positive side, the applicant obtained some favourable prison reports of rehabilitation since 1995, suggestive that (apart from the one incidence involving the Rohypnol tablet noted above) he has been drug free since 1995. A caseworker attached to Loddon prison reports that the applicant's behaviour whilst an inmate between August 1995 and May 1996 was "good", and that he participated in a number of self-management programs. A psychologist attached to the drug treatment program at Pentridge noted improved behaviour after a four months treatment program in 1995, which led to the applicant being transferred to a medium security prison. The assistant manager of classification in the prison service (Mr Bear), likewise noted marked improvement in the applicant's behaviour, albeit expressing some reservation about the prospects of his rehabilitation once released from prison.

27. The second application to set the deportation order aside come before Deputy President Forrest on 28 November 1997. After noting that the applicants awareness that he faced a potential threat of deportation had not deterred him from continuing to be a serial offender, the learned Deputy President weighed up the factors for and against deportation, taking into account the length of time the applicant has spent in Australia, the fact that members of his immediate family are Australian citizens and the fact that the applicant's mother would have difficulty and suffer hardship as a result of the applicant being resettled in another country with which has had little contact since early childhood, and that the applicant had come to terms with his heroin addiction, nevertheless concluded that he presented as a real risk of reoffending if permitted to stay in Australia and, having regard to his extensive criminal history and the seriousness of the offences, that risk was, in all the circumstances, unacceptable. In the result, the deportation order was affirmed. In handing down his decision, the learned Deputy President stated:

"I have come to the conclusion in the instant case that the protection, safety and welfare of the Australian community outweighs the hardship to the applicant and his family. The applicant has a long criminal record extending over fourteen years, with lengthy periods of imprisonment. The criminal history covers a range of offences including four offences of armed robbery, one of maliciously causing injury, one of robbery, three of burglary and twenty-two of theft. ...

In my view the applicant presents as a real risk of re-offending and that is unacceptable in the circumstances. He has known since 1983 that he faces the prospect of deportation, but a warning followed by a reminder in a previous successful review by the Tribunal have had little tangible effect. At the previous hearing, the Tribunal thought that the applicant's best chance of rehabilitation would result if he were able to remain in Australia. ... In hindsight we know that the applicant was not rehabilitated, and that assurances he gave the Tribunal on that occasion that he had given up drugs were false. ... In arriving at this conclusion I do not discount his recent efforts at drug rehabilitation."

28. In the events that occurred, the applicant's advisers succeeded in finding some eight grounds of appeal, and the matter came before his Honour Justice Weinstein. The applicant succeeded on one ground on an issue going to procedural fairness involving the conduct of the proceedings at first instance, and the matter was remitted to be re-heard de novo by a differently constituted Tribunal. (The ground on which the applicant succeeded on appeal is of no consequence in the proceedings before me).

29. At the remittal hearing, much of the evidence given at first instance was repeated. For the convenience of one of the applicant's witnesses, the first witness to be called was Mr Bernard John Healey, a clinical psychologist and an honorary consultant to the Department of Correctional Services (Vic). This sequence of events turned out to be unfortunate since it deprived the Tribunal of the opportunity to question the witness on aspects which came to light during the evidence of the applicant, in particular the likelihood of recidivism, given that the applicant showed no apparent remorse or empathy for his victims, and his certitude that, having been punished for his crimes and served his time, he had paid his debt to society. Nor was it put to the witness that the applicant had threatened to destroy a billiard table and a table tennis table whilst in detention because the noise irritated him. (This was not known to counsel at the time). I will return to these incidences later. In this kind of case, interposing critical witnesses before the main evidence is before the Tribunal is to be deplored.

30. Mr Healey saw the applicant on three occasions since he last saw him for purposes of the hearing before Deputy President Thompson, ie 27 September and 11 October 1997 and 1 November 1998, ie a few days before this hearing. The witness had prepared a voluminous report for the hearing before Deputy President Forrest, dated 11 October 1997, to which counsel for the applicant specifically referred me.

31. After noting that the applicant described a back injury which he sustained in jail in or about 1974 when he slipped and fell "and it was felt that he may require surgery", which has limited his physical capacity in that he has to avoid heavy lifting, Mr Healey noted the applicant's institutional history "which amounts to 18 of the last 21 years" during which time he had become addicted to benzodiazapine, an addiction said to be due to his "unsettled state" which resulted in him being prescribed Serepax at Malmsbury YTC, a form of medication "which seemed to form the basis of an emerging dependency and ultimate addiction to drugs ... ushering in his dependence on substances (benzodiazapine) as a form of solace and escape ... and he began using other prescription medication - Mandrax and Tuenol."

32. It seems that from that point on, the applicant's addiction became worse and he began to use heroin, albeit he underwent a methadone trial (unsuccessful) and quickly drifted back into heroin abuse.

33. As part of his narrative, Mr Healey noted that "in relation to the robbery on the cellars in Balwyn, Percerep was said to have grabbed a roll of coins which he threw at the attendant's head, splitting his scalp - the rifle barrel was held to the back of his head. In the armed robbery of the bank on 28 August 1985 a witness indicated that it was school holidays, he brought his 12 year old son with him." Elsewhere in his report, Mr Healey notes that the applicant "has a long history of severe anxiety with panic attacks and obsessive compulsive features. His underlying anxiety has often resulted in unpredictable, aggressive behaviour, and attempts to control by self-medicating with benzodiazapine and heroin". I mention this in parenthesis if only to confirm my own impression that there is a pent up unpredictable violence and aggression in this man which he is still unable to control, and I echo Mr Healey's observation that as a result of the traumata the applicant suffered in his developmental years he has "adopted the attitude that he had to fight for survival."

34. I find as a fact that this mindset of having to fight for survival persist to this day and always will - certainly the various courses he has undertaken in jail in "anger management" and "alternatives to violence" have had little - if any - impact on this man. I shall return to this subsequently when I come to more recent events which amply confirm this view.

35. Mr Healey applied the usual psychometric tests, which revealed an average intellectual capacity (IQ 97). The witness noted that:

"other significant scales revealed sociopathic features - not surprising in view of a long history of interpersonal relationships difficulties and antisocial trends directly linked to his serious drug abuse. There was a paranoid trend and anxiety would appear to have become more prominent ... even in the absence of the solace and escape provided by drugs and the associated lifestyle, there was a decided sociopathic trend - he has been left to his own limited resources in view of faulty formation in childhood and long institutional experience."

36. Mr Healey elaborated on what he described as a "paranoid trend" by noting that

"this reflects a moderate level of persecutory ideas, although there would appear to have been an easing in what was, in the past, a much more significant paranoid trend. ... Certainly from the profile, from observations of him and discussion with him, there was no evidence of potentially psychotic mode of functioning."

37. Mr Healey concluded that given the applicant's

"reflected anxiety, a paranoid trend (a legacy of more significant persecutory thinking in the past), a sociopathic trend reflecting upon past authority problems, interpersonal relationship difficulties, a measure of social alienation and self alienation the applicant would require - matters with which he will have to be enabled to deal in a lengthy period of parole. ... Certainly the test of the strength of his reformation and change will emerge when he is paroled. In view of the extraordinary changes he has made, one would have to say that his prospects are far more promising than they were at the time of his release in June 1990. Of course there is no absolute guarantee - as he said himself, however, he has had enough of the wasted years, the horrendous experience, and has a strong desire to do something positive with his life."

38. The witness' oral evidence before me went over much the same ground as his report prepared for the hearing before Deputy President Forrest. He pointed out that the applicant's drug addiction was caused whilst he was in the prison system in which he became enmeshed and which for a considerable time did little to discourage drug abuse. The applicant was thus:

"caught in a vicious circle of a maladaptive response to old and outmoded management regimes, confinement in isolation, resistance to discipline, fitting in in the society of hardened and rebellious prisoners, and of course the drugs which had a disabling effect upon his behaviour."

39. It is thus fair to say that the prison environment, as described by Mr Healey, in which this man survived was hardly calculated to facilitate reformation. Indeed, on one view he was as much sinned against as sinning. But that, of course, can have no bearing on a determination whether he is likely to offend again if released into the community.

40. In response to a question by Mr Gray, the witness stated that in his view the applicant's risk of recidivism corresponded to his risk of relapse into addiction, adding:

"It's possible that he may at some stage have some excursion - I would not think into the intravenous drug use again ever, but it might be into other drugs. But that could be managed and monitored, and he would know what responses to take and what to do. ... So relapse, yes, is proportional, it is in proportion to the likelihood of re-offending, but certain relapses could be managed with all the contacts he has. I think it would be most unlikely that he'd ever really take to using needles again."

41. Mr Healey was impressed by the attitudinal change in this man, that he went through an "anger management program" and that he has not relapsed into anger "despite some highly frustrating circumstances." Alas, this is not the view I have formed of this man's response when under stress. I will come back to this when dealing with the events of the ping pong and billiard balls of more recent times of which Mr Healey was obviously not apprised (highlighting the forensic difficulties encountered when interposing expert witnesses before all the other evidence is in).

42. In concluding his evidence-in-chief, Mr Healey was adamant that "once an addict, always one".

43. Mr Gunst QC, who appeared for the respondent, asked Mr Healey what were the probabilities of this man offending again. This elicited the following response from the witness:

"Well, one can't produce or provide a cast iron guarantee. One can't provide an absolute guarantee. One can operate on the balance of probabilities and the probabilities are pretty high in this man's case of becoming a conforming person."

The witness conceded that such conformity would only be achieved if the applicant were surrounded by a network of support. Since the witness was unaware of the aggression with which this man threatened other inmates whilst in detention, threats which reveal a fault line in his character so vast that an eruption of volcanic violence can surface unexpectedly at any time with little or no provocation, I take a different view from Mr Healey in assessing the likelihood of this man reoffending, even in circumstances where he is drug free. In short, I am satisfied that this man poses a considerable risk to the Australian community of reoffending if released, and that this risk is totally unacceptable.

44. To give one incidence which supports the view that man is most unlikely ever to conform to societal norms, evidence was given that on one occasion, the applicant pushed his way to the front of the medication queue at Port Phillip Jail. In his report of this incident on 28 October 1998, Mr Aslan, a correctional officer, noted that as the applicant:

"was a tall, big & muscular prisoner, he did this with ease. I then called him by name three times `Slavko'. He didn't respond. I told him his behaviour was improper and not courteous or fair. He told me to shut up and that he'd just gotten off the phone. I then told him to go to the back of the line. He refused and abused me as being a crazy idiot who needed a psychiatrist. He then had his medication against my further express order and screamed `it's cunts like you that put me in this jail. You are fucked' and then mumbled off some words. I then spoke with nurse Carol and C/O C Palmer who told me he was a standover man and always rushes in out of line to be first and stands over prisoners and officers alike. They were very concerned that his behaviour hasn't changed but only worsened and especially now [prisoners] da Costa & PP Mladevich no longer were the big men in Wakksembyyd. His behaviour must be challenged. I submit this report for your immediate action."

45. In his evidence-in-chief, the applicant's version of what occurred on that occasion differs little from that of Mr Aslan, save that the applicant claimed that he pushed his way to the front of the queue, saying "sort of excuse, excuse, excuse". I am satisfied that the Aslan version is the truthful one.

46. Mr Healey tended to be somewhat dismissive of this incident, claiming:

"that's quite possible to happen with Mr Percerep, or any number of prisoners. ... In a moment of frustration he can manifest some anger. He can become abusive, but looking at the paucity of adverse reports upon him, it still speaks highly of his control and his coping over quite a number of years. He is human."

47. Subsequent evidence revealed that the applicant threatened to smash the billiard table and table tennis table at his present jail if other prisoners continued to play on them because the "ping" and "pong" on the table, and the noise of billiard balls going in-off into the pocket "annoyed" him. Against the total background as it gradually unfolded, I take a less charitable view than Mr Healey of queue jumping incident with its attendant abuse. It also suggests that the certificates he has obtained whilst in jail, certifying that he passed courses in "consequential thinking", "stress management", "beyond violence", "anger management", "non-conflict resolution" and "communication and assertiveness", to name but a few, have had less than optimal effect. I will return to the queue jumping incident when dealing with Mr Aslan's oral evidence.

48. After Mr Healey was excused, Mr Gray called the applicant as his next witness. It seems the applicant retains a basic knowledge of the Croatian language and that Serbian, Bosnian and Croatian are very similar, albeit not sharing the same alphabet. His father had an alcohol problem and the applicant found it difficult to relate to him. However, he had a good relationship with his mother. He reiterated that he was given a hard time at school because of his difficulty with the English language. This is a little surprising since at age ten, it is generally agreed that children do not take long to pick up a new language in a school environment; certainly the applicant's English is now perfect, including its vernacular, as illustrated by the exchange with correctional officer Aslan. It appears that in his total period of residence in this country, he worked in all for some 18 months, on and off, in various labouring jobs. The rest was spent in jail.

49. Mr Gray took the applicant through his criminal history and the evolution of his drug habit, starting with Serapax (prescribed for him for his unruly behaviour) and graduating to heroin. It seems that at Long Bay, there was heroin:

"available all through the jail. Most youths of my age were heroin users and I was very frightened in this prison at the time, and in order for me to fit into this community I felt that I had to be part of heroin experimentation or abuse in order to fit in. Like, if you didn't use heroin you stood out and you were basically pushed around, you know. I was put in the situation that I thought it was better off to experiment this drug and be able to fit into the community, which I did, and heroin was easy to - it was available on a - prison guards were actually selling heroin at this time to us. Yes, that was my first experience with heroin and I have had a heroin addiction ever since."

He claims that when he was released from H Division at Pentridge, he had a syringe and heroin in his possession.

50. When asked why he committed the various armed robberies, he replied that at the time he had a serious drug habit, that his dealers were giving him heroin on credit and expected to be paid:

"It was suggested to me that there's guns available and there's banks that I could rob to get this money for the heroin and the drug dealers. Being so desperate and confused I did commit very serious crimes by robbing these banks."

51. The applicant concluded his evidence-in-chief by claiming that one Olga Tsigaris, a lady working with Community Services" was a good friend of his and would help him with further programming and accommodation once he was released, adding that he would be guided by her in "post-release strategies" and would be willing to consult Mr Healey, the psychologist.

52. Mr Gunst QC, who appeared for the respondent, commenced his cross-examination by putting to the applicant that the thrust of his case now is that he has beaten the drugs and won't offend again. To this the applicant readily agreed. The following then took place:

Mr Gunst: You have done a number of courses that have enabled you, or assisted you, to beat the drugs and to realise that you shouldn't offend again?---Yes.

Mr Gunst: Would you agree with me that that is something you have said on a number of occasions in the past?---Yes.

53. Indeed, as early as April 1988, when interviewed by a departmental officer, to the question: Does the offender believe he has good prospects for rehabilitation. What steps is he taking to assist rehabilitation? the officer noted: "Feels confident has beaten drug problem" (p 169 appeal book). To the question: "Have any benefits been derived from imprisonment?" the officer noted: "Has become wiser, tired of goal and crime (deterrent factor). Has helped beat drug problem. (Has been on outside programs for drugs, prior to sentence; Odyssey House (3x) Moreland Hall and Pleasant View."

54. The applicant cheerfully conceded that the answer he gave that he had beaten his drug problem was untrue at the time, just as was his sworn evidence to like effect before Deputy President Thompson.

55. Mr Gunst then proceeded to extract from the applicant the admission that apart from the robberies for which he was convicted, he had engaged in "up to half a dozen" other armed robberies involving drug dealers.

56. Going through the applicant's prison record, it is fair to say that he can hardly be described as a model prisoner, having some 45 "incidents" recorded whilst in custody, from April 1989 to February 1997, ranging from trafficking, possession and use of drugs, indecent acts (2x), self mutilation, damage to property, fire (several) and assaulting a prisoner, to name but a few (see p 605 appeal book). When these incidents were put to the applicant, he could recall only few of these "incidents" ("Well, I don't deny that I have been in a lot of trouble in my past, but I really don't remember in detail these dates and these incidents"). Given that these "incidents" have not been strictly proved, being merely a computer record frequently based on hearsay and uncorroborated testimony, I do not propose to attach any weight to them other than the applicant's admission that he had been in a lot of trouble in his past, less so since 1995. What is a worrying feature of the case is the applicant's frank admission that even now, he would have no trouble whatever obtaining heroin at Port Phillip Prison. The applicant's evidence on this was detailed and convincing:

"You got to know the ins and outs, what staff are on in which unit, what prisoner is working at what base, whether you've got enough time to get to the kitchen, for example, to see the right person that's going to see someone to get the drugs. It just depends on a few things, you know."

It seems to me that there is little to be gained in offering drug counselling in an environment where highly addictive drugs appear to flow freely through the system.

57. Mr Gunst asked the applicant whether his parents knew of his drug problem, and received the reply that they were not only aware of his drug problem, but tried to stop him taking drugs - "they took me to different clinics. I went in-patient to a few different places in Brisbane and [Melbourne]" (p 98 tr).

58. The next witness - Olga Tsigaris - described herself as a welfare worker and general counsellor with an associate diploma in Welfare Studies. She is currently employed by the Isis Primary Care Centre. She first met the applicant some eight years ago in her professional capacity. Her impression then was that "[the applicant] had a lot of problems and I thought he was a little bit crazy, actually." Since then she has kept up a fairly regular contact with him. The witness volunteered that the Isis Primary Care Centre would be available to the applicant on his release - "the person would come and outlay problems and say: `okay, can you help me do this or fix this?'" It seems the program includes a complete assessment of what the client needs in areas such as health, housing, employment - "I've got lots of resources that I can certainly use and utilise with him."

59. The witness deposed that her impression of the applicant is that he has mellowed since she first met him, "He's definitely very, very different in a positive way to what he was back when I initially met him. I think he has progressed. I think he has some way to go."

60. The next witness was the applicant's mother, Milicia Percerep. When asked by Mr Gary whether she would be distressed if the applicant were deported, she replied: "Yes, that would distress me." (another leading question)

61. Cross-examination revealed that the witness has two sisters living in Croatia with their families and one brother and a sister living in Slovenia with their families, that she visits them regularly, the last occasion being in recent times.

62. Significantly, the witness maintained that although she had heard that her son was taking drugs, "he always told me that he wasn't using it because he knew that would distress me if he would tell me that."

Mr Gunst: So it is not true that you knew of him taking drugs when he lived in Brisbane in 1990?---I didn't know, no I didn't know.

Mr Gunst: And it is certainly not true that you and your husband took him to a number of clinics and doctors to have him treated for his drug addiction in Brisbane in 1990?---I didn't take him. ... If he went by himself, but I didn't take him.

63. When it was pointed out to the witness that her son had given evidence that day that his parents had helped him with his drug addiction in Brisbane in 1990 and had taken him to a number of doctors and medical clinics, the mother replied: "his father was giving him a lift with the car because I was sick from asthma and I couldn't when I saw that something was wrong with my son, but he never wanted to acknowledge or confess to me that he did it, that he was using them."

64. The evidence for the respondent consisted of Mr Aslan and Ms Palmer, both correctional officers involved in the detention of the applicant. Mr Aslan's evidence was directed to the incident referred to above involving the queue jumping episode and in particular the foul language alleged to have been used by the applicant and denied by him. Mr Aslan confirmed that the words set out in his report (exh 1) were "word for word". The witness attached some significance to the fact that the applicant was able to push himself to the front of the queue without protest from other prisoners, which he attributed to "a culture of silence", said to be a product of fear of reprisal from the applicant.

65. Of far greater significance is the evidence of Ms Palmer. It was her view that the applicant was a "repetitive stand-over man", a view she conveyed to Mr Aslan. When questioned on what basis she formed that view, she detailed the billiard and table tennis incidents referred to above. Using her own words, she stated:

"Slavko had indicated that he didn't like the noise of the billiard table and table tennis table, and I had seen him on one or two occasions have a word in other prisoners' ears, and they would stop playing billiards or table tennis. I also overheard Slavko Percerep tell other prisoners that they weren't to play table tennis or he would smash it."

66. At this point I intervened and pointed out that the applicant had not been cross-examined on this quite significant aspect and that he may have to be recalled.

67. It seems that these threats were made over a number of weeks at a time the applicant was on parole and in immigration detention at Port Phillip Prison.

68. In cross-examination, Mr Gray sought to put a more benign aspect on this incident by getting a concession from the witness that she was aware that the applicant was suffering from "stress and back pain", and that it was not unreasonable that he "might need quiet and rest". However, it then transpired that the prison authorities offered to move the applicant from his present cell (which was close to the common room) to another cell away from the noise of cannon balls, an offer which he refused.

69. As a result of these incidents, there was an investigation and Supervisor Spearman spoke with the applicant:

"and gave him the benefit of rectifying the situation ... that he [Spearman] wished to see other prisoners playing a game on the billiard table and table tennis table by the Sunday evening and asked Mr Percerep to speak to other prisoners and give them assurance that this was okay, in which - it did happen."

70. At this point the applicant was recalled and cross-examined by Mr Gunst about this incident. He readily agreed that his cell was close to the common room and that because of his stress and back pain he found the noise of these games quite upsetting, especially early in the morning. So much so that "I've asked a number of prisoners if they would be kind enough [not] to play first thing of a morning" (the same polite language he allegedly used when jumping the medication queue).

Mr Gunst: And you've had words to other prisoners and requested them not to play?---That's true.

71. After further questioning, the witness conceded that, yes, on one occasion he had threatened to smash the table tennis table ("I said - I went up and said: `if you keep playing', I said, `I'll smash the table', and I walked off"). He agreed that he had spoken to other prisoners and asked them to stop playing and "most of the time they respected my request."

72. When I intervened and asked him why, if the noise of the balls annoyed him, he did not accept the offer to move cells? he replied that:

"on the other side of the unit where I live, there is further noise. There is about three big tables where prisoners play cards, and they're forever arguing about who's cheating. They're having their arguments about cards ... and they also play backgammon and draughts where they throw dice continuously on a table that's pretty hollow and it makes noise, and I thought, well, if I go down there there's just going to be further noise, so there's no point in me moving to the other side of the unit because there's just as much noise down there."

CONCLUSION.

73. Having heard all of the evidence and rejected the many allegations of misconduct which the applicant has denied, there remains a litany of serious offences which this man has committed which amply justify his deportation.

74. This man's criminal activities commenced as a child at an age when most children are still in school. Beginning with petty crimes, his activities escalate to armed robbery accompanied by violence and terrorising innocent bystanders. He does not hesitate to use a gun, and it is pure luck that in the case of the BP service station robbery, he did not kill someone and face a murder charge. All this is said to be due to his addiction to drugs. I do not accept this - his early criminal activities were not drug related. It is now claimed, based on his own assertion and serial urinalysis, that his drug addiction is cured. I am mindful on this aspect of the warning issued by Brennan J (when President of this Tribunal): "In assessing an assurance by an offender that his addiction is cured and the danger to others is past, a degree of caution is called for"; see Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 101. However, even assuming in the applicant's favour that he has been free of drugs for some years, his underlying violence which ever smoulders beneath the surface can erupt unpredictably at the slightest provocation, as evidenced by his acts of aggression in Port Phillip Prison when, annoyed by the noise of ping pong balls, he threatened to smash the table unless play is stopped.

75. I consider this man to be irredeemably bad and a continuing threat to the Australian community, and if he does revert to form, the harm is likely to substantial - "The greater the damage which would be wrought by a further transgression, the lower is the level of risk which the community in general can be expected to accept" Re Salazar-Arbelaez ibid at p 100. Indeed, it is no overstatement to regard this man as a parasite whose main contribution to the Australian community to date has been to get his name in two law reports and who shows little potential to make any positive contribution to this society in the future. He is manipulative, aggressive and violent, and likely to remain so. He will lie whenever it suits him, as evidenced by his testimony before Deputy President Thompson and before me, when he tried to convince me that his parents sought to help him beat his drug habit, a claim denied by the mother who maintained that he had never acknowledged his drug habit to her.

76. The applicant has claimed on several occasions that he has reformed and gained new insights into his problems. I disbelieve him. Since suffers from a back condition and has no useable skills, he represents a high risk of economic exclusion and social security dependence. He is thus likely to slide back into hard drug abuse. As Mr Healey put it "once a heroin addict, always one", and if this man does revert to hard drugs, he has amply demonstrated that he will go to any lengths, including armed robberies, to obtain the funds to feed his habit.

77. In summary, the applicant, having received "48 convictions from 18 court appearances" (per Judge Stott, Tp 156), including numerous armed robberies and violence against the person, has so seriously abused the privilege of residence accorded to him that his criminal history alone may well suffice to justify his deportation without even considering the likelihood of recidivism. I put this proposition to counsel for their consideration, noting that Australia's criminal deportation policy suggests that deportation of a person convicted of crime may be appropriate "when a person has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence." (paragraph 11). Examples of serious offences which may render non-Australian citizens liable to deportation are armed robbery and violence against the person (paragraph 12). Since this view was said to be novel, Mr Gray sought time to consider it, and in a well researched written submission, has sought to dissuade me from taking such a course, noting that policy guidelines are not always in precise language and that the policy should be construed in its entirety and not given a selective construction by treating the "or" disjunctively where it appears among the various guidelines for deportation. For good measure, he referred me to the decision of the Full Federal Court in Minister for Immigration v Gray (1994) 50 FCR 189, where at p 211, French and Drummond JJ noted:

"Further, we consider that his Honour was substantially correct when he held the determination of the level of acceptable risk by reference to factors adverse to the applicant and without reference to the level of rehabilitation achieved and potential as a role model, involved error. It is not necessary to go so far as to say that the Tribunal's approach was manifestly unreasonable. It suffices to say that it failed to have effective regard to those factors which it was bound to take into account in the assessment process." (my underlining)

78. Whilst not directly in point, I am fortunately spared in this case from the necessity of having to reach a concluded view on this apparently novel proposition since I am not satisfied that this man has reached a level of rehabilitation which can be taken into account in the assessment process. I say nothing about "role model". On the contrary, I am satisfied that the applicant has not, despite being apparently free of heroin since 1995, ceased to be dangerous and/or has reformed to the point where he no longer poses a substantial risk of sliding back into his old habits of armed robberies and violence against the person. Indeed, I regard the risk of recidivism in his case as "high" to "very high" and "in a case where the harm likely to result from recidivism is great, the community should be reluctant to accept any real or significant risk of recidivism" (per Davies J, Gemayel v Minister for Immigration and Ethnic Affairs (1978) 2 ALD 163). Nothing in the past - parole, probation orders, bail, and warnings that he may face deportation if he persists with his criminal ways - have deterred this man from his chosen path of crime. Indeed, he committed his most vicious armed robbery whilst on bail, having been found cured of his drug addiction by Deputy President Thompson.

79. If, as it is said, his violent acts were solely related to his drug addiction from which he once again claims to have been cured, I reject this as against the evidence. Mr Healey, when asked by me "on a scale of 10, where would you place the applicant in terms of reverting to his former habits", replied: "I would place that very low, the prospect of reverting to former habits. It is very difficult to make a score out of 10 but I would say probably 2 out of 10, something of that kind, even 1 out of 10 of the prospect of him returning to former habits." (p 21 tr). In cross-examination, the witness - somewhat implausibly - sought to qualify that response by claiming that I had asked him in relation "prescription medication abuse or some drug abuse of that kind, not necessarily heroin. ..." (p 31 tr). That was certainly not the tenor of my question.

80. Having carefully observed the applicant in the witness box, I am satisfied that beneath his veneer of conformity and moderation, he has a violent streak and reacts instinctively with uncontrollable aggression and rage to minimal provocation. He thus continues to be a threat to the Australian community if released.

81. For the sake of completeness, reliance was placed on several reports from Amnesty International dealing with the current situation in the former Republic of Yugoslavia. However, as these reports deal predominantly with the fate of ethnic Albanians in the province of Kosovo, they have little evidentiary value in this case.

82. It was suggested that there is some uncertainty in relation to the enforceability of the deportation order in relation to the former Republic of Yugoslavia. However, no persuasive evidence was put before me that the applicant's status as a Croatian is likely to give rise to uncertainty in the implementation of any deportation order. In any event, this is not a matter which concerns me; see my observation on this point in Salameh and Minister for Immigration and Ethnic Affairs (No 10,496 dated 26 October 1995). It is unfortunate that his deportation will cause hardship to his mother and to him. However, the benefit accruing to the Australian community as a whole by the removal of this man far outweighs the hardship he is likely to suffer if he is returned to some province of what was formerly the Republic of Yugoslavia. Again, apart from having elderly parents living in Wodonga, it can hardly be said that this man has established any significant ties with Australia apart from having spent the bulk of his lifetime in Australian prisons, certainly none which would support permanent residence here. No doubt living in Bosnia/Croatia will prove harsh even though the applicant has family there and an adequate knowledge of the Croatian language. It was put to me that the applicant may well be ill-treated by members of the local population. However, deportation is not punishment any more than taking a doctor or lawyer off the register for professional misconduct, but rather is aimed at protecting the safety and welfare of the Australian community. In any event, I am satisfied that anyone attempting to ill-treat this man will come off second best. A person who can jump a queue in jail without demur and stop fellow prisoners from playing billiards because the noise a canon makes irritates him will survive anywhere.

83. Having regard to all the evidence, material and submissions, I am satisfied that the deportation order should be affirmed.

84. Since the applicant has already indicated that he will appeal "to the High Court", and since it is inevitable that the ingenuity of counsel will find some ground or grounds where it can be said that I have misconstrued the evidence, hopefully this time round, a Federal Court seized of this matter will find sufficient evidence to adopt the course of action taken in Statham & Anor v FCT 89 ATC 4070, viz itself identifying relevant facts from the evidence before the Tribunal where those facts are largely undisputed, and conclude that it would be wasteful of time and costs and oppressive to witnesses to order a rehearing (in this case it would be for the fourth time), regarding it as proper for the Court itself to finally dispose of the matter in accordance with its powers under s 44(4) and 44(5) of the Administrative Appeals Tribunal Act 1975, see also Ogilvy and Mather Pty Ltd v FCT (1990) 21 ALD 679 and Crommelin v FCT July 1998 Federal Court No 980878, per Foster J.

85. Finally, I would be remiss if I did not acknowledge the considerable assistance I received from both counsel in their most helpful submissions.

I certify that this and the 27 preceding pages are a true copy of the decision and reasons for decision herein of Dr P Gerber (Deputy President)

Signed: .....................................................................................

Associate

Date/s of Hearing 17 November and 16 December 1998

Date of Decision 6 January 1999

Counsel for the Applicant Mr Gray

Solicitor for Applicant Mr P McQuillen

Victoria Legal Aid

Counsel for the Respondent Mr Gunst

Solicitor for the Respondent Mr Russell Rigby

Dept of Immigration & Multicultural Affairs