Rus and Minister for Immigration and Multicultural Affairs [1999] AATA 488 (5 July 1999)

Last Updated: 20 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 488

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/518

GENERAL ADMINISTRATIVE DIVISION )

Re VASILE RUS

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President T E Barnett

Date 5 July 1999

Place Perth

Decision The decision under review is affirmed.

............(sgd T E Barnett)...........

Deputy President T E Barnett

CATCHWORDS

MIGRATION - Deportation of permanent resident of less than 10 years standing - convicted of offence and sentenced to in excess of 12 months imprisonment - very long list of offences, including stealing, motor vehicle offences, drug offences, giving false names, failing to appear and deportable offences - attempting to pervert the course of justice - addiction to heroin and alcohol - significant risk of reoffending.

Migration Act 1958 ss 200, 201, 499, 500

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

REASONS FOR DECISION

5 July 1999 Deputy President T E Barnett

1. The applicant seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (The Minister) dated 26 November 1998 to deport him pursuant to the powers granted to the Minister by s200 of the Migration Act 1958 (the Act).

2. At the hearing, the applicant was unrepresented and the respondent was represented by Mr J Ambikapathy, an advocate of the Department of Immigration and Multicultural Affairs (DIMA). Oral evidence was heard from the applicant, his brother, Petrica Rus, Ioan Neambu, Josephine Perri, Imelia Perri, Orlando Perri, Traian Troaca and Benjamin Fikui (by telephone). In addition to the materials prepared in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and two sets of supplementary T documents ("S Documents"), the following documents were also admitted into evidence:

Exhibit A1 Substance use Resource Unit Program Completion Report

Exhibit A2 St Johns Ambulance Basic Life Support Certificate

Exhibit A3 Letter from DIMA dated 16 April 1998 to Mr Vicary

3. Mr L Tomulesco acted as interpreter into the Romanian language.

Background

4. The applicant was born on 24 July 1966 in Romania and is now aged 32. He was accepted into Australia as a refugee under the Romanian Refugee Program and arrived on 25 September 1997. He took up residence in Melbourne and within a few days was offered part-time work as a painter by some former Romanians. His new friends introduced him to the world of drugs and within a month he was apprehended while acting as a heroin courier. He was convicted of being in possession of heroin and sentenced to one month's imprisonment.

5. He formed a de facto relationship with a convicted heroin addict, dealer and prostitute, Josephine Perri. On the 13 May 1990, their daughter Bianca was born. A month later the applicant took Josephine and Bianca to his parents in Romania, as Josephine's addiction made her incapable of being a suitable mother. Josephine returned to Australia within 5 days and the applicant returned after about a month, leaving Bianca with his mother in Romania, where she stayed for the next three years.

6. Back in Melbourne the applicant obtained unemployment relief and commenced using drugs and alcohol heavily. In the next two years, in both Melbourne and Sydney he was convicted and fined for offences relating to drugs of dependence, driving under the influence of alcohol and driving without a licence. There were also convictions for using false driving licences, giving false name and having deceptive number plates as he attempted to avoid justice. He also commenced a practice of failing to appear at court from bail. On 13 February 1992, he was sentenced to imprisonment on two charges of failing to appear.

7. In December 1992, he again failed to appear (under a false name) on charges of using and trafficking in heroin. On 23 August 1993, he was convicted of charges of burglary, theft, criminal damage, loitering, possessing, using and trafficking heroin and other drugs and failing to appear on bail. He received a sentence of an intensive correction order as well as fines and compensation orders. On 18 October 1993, he was fined in respect of loitering and possession of cannabis and on 12 November 1993 he was convicted of offences of deception, shop stealing and possessing and using heroin, receiving concurrent sentences of 7 days imprisonment.

8. On 28 January 1994, while he was still in prison, he received concurrent sentences totalling 3 months for theft of a motor vehicle, shop stealing, using heroin, obtaining property by deception and, again, unlicensed driving. All sentences were suspended for 12 months and he was disqualified from obtaining a driver's licence for 9 months.

9. Meanwhile, the applicant's young brother, Petrica and his family had migrated to Australia and were residing in Melbourne. Petrica had unsuccessfully tried to curb the applicant's substance abuse and criminal behaviour. Petrica then moved to Perth and when the applicant was released from prison in February 1994, he followed Petrica to Perth. The applicant says that he spent a few days with Josephine's parents, Imelia and Orlando Perri who were looking after Bianca, who had been recently brought from Romania at the instigation of Petrica. The cost of Bianca's trip was shared by Petrica and Orlando. At that stage, Josephine was seriously addicted to heroin and was working as a prostitute to finance the habit. The applicant says he had been drug free in prison and wanted to stay that way. To avoid the temptation to use drugs, he cut himself off from further contact with Josephine and his other drug involved friends in Melbourne, by moving to Perth.

10. In Perth he stayed with Petrica and sought work, eventually finding employment slaughtering chickens. He says that he remained free of drugs and managed to hold his alcohol consumption within socially acceptable limits. He came under the influence of Petrica's Christian associates in the Romanian Pentecostal church. At that time he met Mr Traian Troach, an active lay member of the church.

11. After a few months with Petrica, he again took up with undesirable friends and moved into a house with them. They introduced him to easier ways to make money. He gave up his work as a chicken slaughterer and resumed his pattern of heavy alcohol consumption.

12. On 22 March 1995, while heavily intoxicated, he was involved in a series of motor vehicle collisions causing grievous bodily harm and bodily harm to two people. By lying to his lawyer, he falsely indicated to the court that he was a first offender and was sentenced to concurrent sentences of 9 months imprisonment and 4 years 3 months suspension of licence as well as fines totalling $1,000. On 17 October 1996 he was convicted of driving while licence suspended and failing to report an accident.

13. In May 1997 he took a car illegally from Perth to Melbourne and was arrested and convicted of theft, offensive behaviour and breach of the intensive correction order made on 23 August 1993. He was also sentenced for the offences which were the subject of the suspended sentence order of 23 August 1993. The applicant claims that his arrest in Melbourne frustrated his intentions of visiting Bianca on her birthday.

14. On his return to Perth, he was "found" by Traian Troaca who described him as living in very degrading circumstances with undesirable associates. He persuaded the applicant to return to Petrica's house and live under his supervision. He then commenced attending church services with the Romanian Pentecostal mission and attending prayer meetings at members' houses. Mr Troaca's evidence is that he observed the applicant over several months and felt that he had been "born again into the Christian faith". Over the doubts of other members of the congregation, who were not yet convinced of the permanence of the applicant's change of behaviour, Mr Troaca sponsored the baptism of the applicant who was duly baptised as a born again Christian. Unfortunately, the reformation did not last and after about 6 months or more of apparently devout, temperate Christian life, the applicant renewed his old drinking friendships, moved out of his brother's house and resumed drinking heavily.

15. On 27 February 1998 the applicant was convicted in the Western Australian District Court of two counts of attempting to pervert the course of justice and eleven other charges including reckless driving, speeding, driving with excess alcohol in the blood and stealing. He received a sentence of one year on each of the attempted perversion of justice charges, to be served cumulatively, making a total sentence of three years imprisonment on all charges.

16. He was interviewed and a deportation order was made on 26 November 1998, on the basis that he had been convicted of deportable offences and given a term of imprisonment in excess of 12 months when he had been a permanent resident of Australia for a period in total of less than 10 years.

17. The circumstances leading up to the attempted perversion of justice charges and the serious nature of those offences appears clearly from the sentencing comments of the trial judge (T 115-137):

The facts in respect of the matters contained on the indictment are as follows: at 10.47 pm on Thursday, 14 November 1996, the offender drove his Holden Commodore sedan, registration number 7KI-445, on Wanneroo Road, Girrawheen and was stopped by police. At the time the offender assumed the identity of his brother and used both his brother's name and address; namely, Patrizia Dimitri RUS of 27 Threadleaf Way, Mirrabooka.

The offender was subsequently charged with a point 0.8 offence and was fingerprinted, photographed in his brother's name and was bailed at 11.59pm on 14 November 1996 to appear at the Joondalup Court of Petty Sessions on Wednesday, 20 November 1996. At 1.50am on Friday, 15 November 1996 the offender again drove his Holden Commodore sedan, registration 7KI-445, on Murray Street, Perth and was stopped a second time by the police. Again the offender assumed the identity of his brother and used both his name and address - and gave his name and address to the police. He was again charged with excess 0.8, fingerprinted and photographed in his brother's name and was bailed at 3.50am on 15 November 1996 to appear in the Perth Court of Petty Sessions on Wednesday, 20 November 1996.

He failed to appear in court on each of the above matters and a bench warrant to the name of his brother was issued for his arrest. At 5.03pm on Saturday, 7 December 1996, the offender drove his Holden Commodore sedan, registration 7KI-445, and was stopped by police on Forrest Road, Armadale on other matters. When questioned by police he gave his brother's name; namely, Patrizia Dimiti RUS. However, inquiries at the scene revealed the name to be false.

As a result of these other matters the offender was subsequently arrested and conveyed to the Armadale police station where further inquiries revealed that bench warrants were in existence for the offender under his brother's name. When questioned the offender admitted the offences offering an explanation that he assumed his brother's identity because his licence was under suspension.

18. Commenting on the seriousness of the applicant's criminal behaviour, the judge said:

As I say, you have got a whole series of other matters in Victoria, New South Wales and here which show that over the last few years since you came to Australia you just couldn't care less about anybody else. You're prepared to put other motorists' lives in danger. You're prepared to disregard the law. You're prepared to lie to the police, prepared to not turn up at Court when you're ordered to and so on.

Your record in New South Wales, in Victoria and now in Western Australia, before this in Western Australia but certainly now in Western Australia, shows that you have a complete disregard for the rights of other people. You drive when you're ordered not to. You drive when you're affected by liquor when you know you shouldn't. You commit all sorts of other offences. In this matter as well as pleading guilty to the two charges on the indictment you have pleaded guilty to 16 charges on a section 32 notice covering stealing, breach of bail, driving under suspension, driving in excess of .08 laws, reckless driving, giving false name and speeding.

The totality of the applicant's criminal record on the short period since his arrival in September 1987 is very serious. The full list of his convictions, to which he has agreed, is conveniently set out in the Respondent's Statement of facts and Contentions as follows:

Place and Date of Conviction Offences and Date Charged Sentence

Melbourne Magistrates' Court 19.10.88 Possess drug of dependence (heroin) 1 month imprisonment

Melbourne Magistrates' Court 23.11.88 Possess drug of dependence $400 Good behaviour bond

Burwood (NSW) Local Court 20.7.90 Mid PCA (Prescribed Concentration of Alcohol) Possess article resembling license Unlicensed driving State False name & place of abode NCB Warrants to issue

Prahran Magistrates' Court 13/7/91 Traffic drug of dependence Possess drug of dependence Use drug of dependence Failed to appear Warrant issued

Sydney Central Local Court 7/1/92 Mid PCA Unlicensed Driving Possess licence to deceive State false name and place of abode Fined $600. Licence suspended for 12 months. Fined $200 Fined $400 Fined $200

Sydney Central Local Court 9/1/92 Number plates calculated to deceive Supply False Name Unlicensed Driver Drive with middle range concentration of alcohol Fined $100 Fined $200

Sydney Central Local Court 13/2/92 Fail to appear Imprisonment 1 month 5 days

Sydney Central Local Court 15/9/92 Larceny ROC

Downing Centre Local Court 15/10/92 Possess prohibited drug NBC warrant to issue

Prahran Magistrates Court 9/12/92 Loiter with intent Use other drug of dependence Traffick in heroin Use of heroin Possess heroin Fail to answer bail Failed to appear Warrant issues as George Victor RUS

Broadmeadows Magistrates Court 23/8/93 Burglary Theft Criminal Damage (intent Damage/Destroy) Fail to answer bail Fail to appear Fail to answer bail Reputed thief/suspect loiter public place Possess heroin Traffic heroin Use heroin Use other drug of dependence 6 months on each charge concurrently To be served by way of intensive correction order 6 months on each charge concurrently. To be served by way of intensive correction order. 9 months sentence suspended for 2 years under section 27 of Sentencing Act. Convicted and fined $300 on each charge. To pay $151.70 compensation.

Williamstown Magistrates Court 18/10/93 Reputed thief/Suspect loiter public place Use Cannabis Both charges convicted and fined aggregate $600.

Frankston Magistrates Court 12/11/93 Obtain property by deception Theft from Shop (Shopsteal) Going equipped to steal/cheat Possess Heroin Use Heroin 7 days on each charge to be served concurrently.

Springvale Magistrates Court 28/1/94 Theft of a Motor Vehicle Go equipped to steal/cheat Use Heroin Theft from shop (Shopsteal) Obtain property by deception Unlicensed driving 3 months sentence suspended for 12 months. 1 month on each charge concurrent. Sentence suspended 12 months. To be treated for 24 months at Pleasant View To abstain from drugs and alcohol Disqualified from obtaining a license for 9 months Articles forfeited.

Joondalup Court 22/3/95 Dangerous driving causing grievous bodily harm prescribed Dangerous driving causing grievous bodily harm prescribed Driving under the influence-lst offence Failing to stop after accident No motor drivers licence- under suspension Failing to report an accident 9 months imprisonment. MDL disqualified for 2 years. 3 months imprisonment MDL disqualified for 18 months consecutively. Fined $500 Fined $100 MDL disqualified for 9 months cumulatively. Fined $300 Fined $100

Perth Court 17/10/96 No motor drivers licence Failing to report an accident MDL disqualified for 9 months cumulatively. Fined $300 Fined $100

Dandenong Magistrates Court 19/5/97 Breach intensive correction order Theft of a motor vehicle Behave in offensive manner-public place Possess regulated weapon Breach re 23/8/93 Possess Heroin Fail to answer bail Reputed thief/suspect loiter public place Criminal damage (intent damage/destroy) Burglary Theft 123 days concurrent 3 months concurrent 7 days on each charge concurrent Knife forfeited Breach of intensive correction order. Order cancelled. To serve unexpired portion of 122 days.

District Court (WA) 27/2/98 No motor drivers licence-under suspension Reckless driving False name and address Excess 0.8% blood alcohol No motor drivers licence-under suspension Excess 0.08% blood alcohol Exceed the speed limit by 45 or more kilometres per hour Excess 0.08% blood alcohol No motor drivers licence-under suspension Attempt to defeat/pervert the course of justice Breach of bail Stealing 3 months imprisonment. MDL disqualified 9 months cumulatively. 6 months imprisonment, MDL disqualified 6 months cumulatively. Fine $100 MDL cancelled and disqualified 6 months cumulatively. Fine $600 3 months imprisonment. MDL disqualified 9 months cumulatively to serve concurrently. MDL cancelled and disqualified 6 months concurrently. Fine $750. Fine $250. MDL cancelled and disqualified 6 months concurrently. Fine $600. 3 months imprisonment. MDL disqualified 9 months cumulatively to serve concurrently. 2 counts. 12 months imprisonment on each count, to be served cumulatively. 1 months imprisonment to be served concurrently on each charge. 3 months imprisonment to be served cumulatively.

19. Clearly the applicant's circumstances fall with the wording of s.201 of the Act, as he was convicted in Australia and sentenced to imprisonment for "not less than one year (i.e. 3 years) and had been in Australia as a permanent resident for less than 10 years (8 years and 10 months). That being so the Minister's discretionary power to deport pursuant to s.200 is enlivened. Standing in the shoes of the Minister, the Tribunal must now decide whether the decision to deport is the correct and preferable decision.

20. In deciding this issue the Tribunal, empowered by s.500 of the Act, has taken into account the policy directions issued by the Minister pursuant to s.499 of the Act, which were provided to the Tribunal by the respondent.

The Applicant's Case

21. The applicant has admitted the convictions and sentences listed above (after some initial confusion regarding the sentences imposed after breach of the terms of his intensive correction order).

22. He points out that he has never been convicted of a crime of violence and claims he therefor is not a serious threat to the Australian community. He feels aggrieved that he was never warned that his criminal activities might lead to deportation and he feels this is unfair. He asks for another chance.

23. Probably his main argument is that his deportation will deprive his 3 year old daughter Bianca of access to her father and the chance of being raised in a two parent family as an Australian citizen.

24. The applicant has also claimed, that he would be in danger of persecution on political grounds if he is deported to Romania, as he came here originally as a refugee from that country.

25. On the evidence of the U.S. Department of State Romania Country report on human Rights Practices 1997, submitted by the Respondent (S7/43-54) and the fact that the applicant voluntarily re-entered and later left Romania in 1990 without trouble, the Tribunal is satisfied there is no substance to his claimed fear of persecution.

26. Although there is no conviction involving the deliberate infliction of violence, the applicant's persistent record of driving when drunk, sometimes at great speed, is very serious. He has already caused serious injuries to two people and to himself by this behaviour. He clearly has a serious alcohol problem and on the evidence of the psychological report of the Prison Substance Use Resource Unit Report (s31/98) he will face considerable "tests" if released and will require a lot of support to help him not to relapse into substance abuse. The Tribunal finds that he continues to pose a significant threat to the Australian community. His claim to have successfully broken his previous heroin and alcohol addiction is not sufficiently proven in the test of daily life in the community. It is likely to be difficult for him, as for other former addicts, especially as Bianca's mother is a heroin addict presently being treated on the methadone program. From her own evidence, and that of her parents, she is currently in a very fragile condition, with little self-confidence and requires much family support to remain free of heroin.

27. His course of conduct in giving false names, using false driving licences and deceptive number plates, failing to appear at court and breaching the terms of his intensive corrections order demonstrates a serious disrespect for the law, culminating in the serious deportable offences of attempting to pervert the course of justice. The Tribunal fully agrees with the comments of the trial judge, Jackson J, about the seriousness of the long record of criminal activity engaged in by the applicant, which commenced within weeks of arriving in Australia.

28. The applicant has been given many opportunities to reform his character and he has previously received the strong support from his brother and the members of the Romanian Pentecostal Church. The fact that he nevertheless relapsed into drunkenness and crime further emphasises that there is a significant continuing risk he will re-offend and continue to be a danger to the community if he is allowed to remain in Australia.

29. The Tribunal has given careful consideration to the welfare and best interests of Bianca, in accordance with the principles set out in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. It notes that the applicant has virtually never acted as a father to Bianca. He left her in Romania for 3 years, almost from birth, and has been either in prison or interstate (in Perth), since she returned to Melbourne. Bianca has been brought up by grandparents as both her parents were not fit to care for her. Although the applicant has of recent months made more frequent telephone calls to Bianca, this follows years of far less contact. Even now the applicant does not have free and loving telephone calls with Bianca, as she is not really responsive to him. In evidence he demonstrated that he knows little about the things of importance in Bianca's life.

30. The grandparents, Mr and Mrs Perri, are justifiably not at this stage willing to let Bianca go to Western Australia to join the applicant. The applicant, for his part, is not prepared to move to Sydney, because he fears he may resume his association with the drug scene. Josephine lacks the strength and confidence to take Bianca and join the applicant in Perth, saying she must stay near her parents to be supported on the methadone program.

31. The Tribunal has great concern for the future wellbeing of Bianca, but feels that it is not dependent upon whether or not the applicant is deported.

Hardship to the applicant

32. The applicant has parents and siblings in Romania and has retained strong contacts there, in the land of his birth. He will suffer some emotional hardship at being separated from Petrica and his family and, possibly, in being separated from Bianca if he is deported. He does not seem to have strong feelings of affection for Josephine.

Hardship to Australian Relatives

33. The applicant's brother Petrica Rus says he will miss the applicant if he is deported as he has no other relatives in Australia. That may be so, but the applicant has in fact caused a great deal of trouble for Petrica, even being charged with committing criminal offences using his name which resulted in warrants being issued for Petrica's arrest.

34. The Tribunal notes that friends and family and members of the Romanian Pentecostal Church are willing to try and give the applicant another chance, and to try and help him with accommodation, employment and advice. This however has already been tried unsuccessfully and the applicant relapsed into drunkeness and crime.

35. In all the circumstances the Tribunal agrees with the delegate of the Minister that the correct and preferable decision is to order the deportation of the applicant.

Decision

36. The decision under review of 26 November 1998 that the applicant be deported is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Barnett

Signed: Catherine Osborn .....................................................................................

Associate

Date/s of Hearing 10 - 11 March 1999

Date of Decision 5 July 1999

Counsel for the Applicant In person

Solicitor for Applicant -

Counsel for the Respondent Mr J Ambikapathy

Solicitor for the Respondent Department of Immigration and Multicultural Affairs