Afoa and Minister for Immigration and Multicutural Affairs [1999] AATA 82 (12 February 1999)

Last Updated: 17 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/684

GENERAL ADMINISTRATIVE DIVISION )

Re Michael Faauuga Afoa

Applicant

And Minister for Immigration and Multicultural Affairs

Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date 12 February 1999

Place Melbourne

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the deportation order be revoked.

........(Sgd. B.M. Forrest)..........

Deputy President

CATCHWORDS

MIGRATION - deportation - applicant migrated to Australia in 1987 - convicted of maliciously inflicting grievous bodily harm - criminal deportation policy general direction effective from 21 December 1998 - consideration of relevant "primary" and "common" considerations to be taken into account - expectations of the Australian community - protection of Australian community - decision under review set aside.

Migration Act 1958 ss. 200, 201 and 499

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

REASONS FOR DECISION

12 February 1999 Deputy President B.M. Forrest

Introduction

On 8 March 1996, the applicant Michael Faauuga Afoa, a citizen of New Zealand but with permanent residence status in Australia, was convicted in the District Court of New South Wales of maliciously inflicting grievous bodily harm on Neville Edward Thompson at Quakers Hill on 25 May 1995 with intent to do grievous bodily harm.

The applicant pleaded guilty and was sentenced to a minimum term of 3 years imprisonment expiring on 26 May 1998 on which date he was eligible for parole, and to an additional term of 12 months, to commence at the expiration of the minimum term. A condition of early release was the undertaking of a course of drug and alcohol counselling.

On 19 March 1996, an officer of the respondent wrote to the applicant informing him that his conviction rendered him liable to deportation. On the basis of the conviction a deportation order was subsequently made on 4 November 1997 pursuant to s. 200 of the Migration Act 1958 ("the Act"). The applicant seeks a review of that decision.

Legislation

The relevant provisions of the Act are:

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

201 Where:

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

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

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

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

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

(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

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

section 200 applies to the person.

...

499. (1) person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given."

Background Circumstances

The applicant was born in Western Samoa on 26 May 1977. His mother, who was then 17 years of age and unmarried moved to New Zealand one year later, the applicant remaining in Western Samoa in the care of grandparents. In 1986 he moved to New Zealand with his grandparents and with them he migrated to Australia on 1 November 1987.

In Australia, he continued to live with his grandparents in Sydney and went to school there, although he lived for a while with an uncle in Queensland. His mother married Faoa Afoa in New Zealand in 1980. There are three children of the marriage. The applicant returned to New Zealand in April 1989 and lived with his mother and her family until January 1991 when he returned to Australia and again lived with his grandparents.

In Australia the applicant completed year 10 of secondary schooling. During year 11 he was expelled for being a troublemaker and for his drinking. For almost a year the applicant was unemployed then for about three months he was employed in a warehouse.

In early 1993 the applicant first came under the notice of authorities for illegal use of a motor vehicle, dangerous driving and unlicensed driving. For these and offences of breaking and entering, malicious damage, assault and offensive language committed between 1993 and 1995, he received community service orders in the Childrens Court. All of these offences occurred prior to the offence relied upon in making the deportation order.

On 25 May 1995, on the eve of his 18^th birthday, the applicant had been drinking with friends. Late that night he committed the deportable offence. The victim of the crime a 42 year old male, had attended a function at a hotel that day and walked to the Quakers Hill railway station shortly before midnight. At about 2.15 a.m. the following day he was found unconscious on the railway platform with severe lacerations and bruising to his head. He was taken to hospital in a critical condition and remained an inpatient until 2 June 1995. He suffered a significant injury to his brain.

In evidence to the Tribunal the applicant said that he had arrived at the railway station carrying a quantity of beer. The victim asked for a beer. They shared a bottle of beer and spoke to each other for about 10 minutes. As a result of something said by the applicant (which he could not recall) the victim punched the applicant whereupon the applicant became very angry, lost control and punched and kicked the victim.

The applicant's brief account of the preceding circumstances is generally consistent with Judge Robison's remarks in the District Court when sentencing the applicant:

"It is evident from the material I have considered that what preceded the altercation was that the victim asked the prisoner for a beer, the victim then punched the prisoner following something said to him by the prisoner, the prisoner then punched the victim and kicked him a number of times when he fell on the platform. The prisoner then departed only to return and inflict further kicks upon Mr Thompson before finally leaving the scene. There is material to indicate that the prisoner stated that he lost control and was very angry at the time." pg 31 tdocs

The applicant was arrested shortly afterwards and made admissions of the circumstances. He remained in custody awaiting sentence and following sentence until release on parole on 26 May 1998, the date of expiration of his minimum term of imprisonment.

At the time he committed the offence, the applicant had acquired five years and eight months lawful residence in Australia.

Ministerial Direction

The Minister for Immigration and Multicultural Affairs, Mr Ruddock, has issued a General Direction under s. 499 of the Act of Australia's criminal deportation policy. The direction is dated 21 December 1998 and is said to have effect from that date. A copy of the direction was included in the material before the Tribunal.

The policy direction requires decision-makers to have regard to considerations termed "primary" and "common" considerations. There are two primary considerations: the expectations of the Australian community and where the applicant is involved in a parental relationship with a child, the best interests of the child. The second consideration is not relevant in the present case. Under community expectations there are two aspects of the policy:

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

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

Paragraph 9 contains a general statement of government policy on community protection:

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

Paragraph 10 recites three factors as 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."

The "common" considerations are dealt with in paragraph 21 under the heading "Other Considerations". These matters, which are to be given less weight than primary considerations, include:

"(a) the degree of hardship which may be suffered by the potential deportee; and

(b) the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family...."

Running through the policy direction is the continually repeated reminder that decision-makers should have due regard to the Government's view.

Consideration

Ms Quayle, for the respondent, submitted (relying on paragraph 15 of the policy direction) that the nature of the applicant's offence is so abhorrent to the Australian community that he should be deported. Paragraph 15 reads:

"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 deportable offence, being a crime of violence, falls within the examples of offences cited in paragraph 11 of the policy direction as "very serious".

The dominant concept of the policy direction is one of community protection, recognising the right of the Australian community to be protected from serious offences, including violent behaviour of the kind perpetuated by the applicant.

The offence in question involved a vicious assault inflicting life threatening injury. The victim required inpatient hospital care as well as a period of outpatient care and was unable to return to full time work and his former duties until October 1995. There is no up to date medical material to indicate if the victim suffered any permanent impairment as a result of his injury. A neuro psychology report before the District Court when the applicant was sentenced noted that the victim "is functioning well and has made a good recovery". The material disclosed both the applicant and his victim were adversely affected by alcohol at the time of the incident, and while alcohol abuse appears to have been a factor in the applicant's behaviour, it is not an excuse for it. His response to being punched was to inflict a savage beating upon his victim, an action that was totally unwarranted.

The seriousness of the offence and the relevance of deterrence is reflected in the sentence imposed. At the same time allowance was made for the fact that the applicant pleaded guilty at a very early stage, was co-operative and demonstrated considerable contrition for what he had done.

At one end of the scale there is some criminal behaviour which is so abhorrent that the community, for its own protection because of the gravity of the crime, may well wish to exercise the choice to remove the offender from within its midst, irrespective of other factors in the balancing process of relevant considerations. However without in any way diminishing the seriousness of the offence, I do not think that the present matter is a case where the seriousness of the crime and the community expectation is such that deportation is the appropriate course of action without any consideration of whether the applicant is likely to be a continuing threat to the community or not.

Community expectation will of course mean different things to different people. I think the phrase "community expectation" is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.

Accordingly, I turn to consider the factors referred to in paragraph 10 of the policy as relevant to an assessment of the level of risk to the community and the need for its protection. I have already discussed the first of these factors, the seriousness of the crime, which needs no further elaboration.

In regard to the second factor, the risk of recidivism Ms Quayle submitted that the applicant presented as an unacceptable risk of reoffending because of his prior record, his failure to accept responsibility for his actions and his behaviour while in prison.

In relation to the applicant's prior history, I take into account that he has had a number of Childrens Court appearances prior to the deportable offence but in any consideration of his past behaviour I also keep in mind that the applicant has spent the greater proportion of his adolescent years in Australia and the offences were committed in this country during that period of his life, and not in adulthood.

In assessing the risk of recidivism the policy requires that where a person commits a further offence after a warning, there is an expectation that significant weight be given to the warning. While the applicant's prior offences do not render him liable for deportation and the issue of a warning for these offences does not arise, equally I think that fairness would dictate that I take note that the applicant was not given a warning in this case.

In support of the contention that the applicant has failed to accept responsibility for his actions, Ms Quayle relied upon the notes of an immigration officer who interviewed the applicant by telephone on 8 August 1997 for the purposes of an assessment for deportation. In response to Question 26 which reads:

"Offender's report of current offence. (Why was it committed?) Does he or she believe there are mitigating circumstances which should be taken into account?"

the officer wrote:

"He pleaded guilty even though he believed it was self defence. He was advised to plead guilty by his solicitor. His family did not have the money for a long trial."

The applicant does not dispute this note accurately records the answer he gave. He said he was influenced by other prisoners to say he acted in self defence and began to believe that himself, which was why he made the claim to the immigration officer, although he knew in his own mind that it was not self defence. I think that given the environment in which it was made, including some elements of self pity for the predicament he found himself in, his comments in the telephone interview with the immigration officer should not be given too much significance as evidence of a lack of insight or remorse for his actions. Against that, the Judge, when sentencing the applicant, noted his contrition for his actions. Maria Ridge, Bathurst Parole Officer, in a pre-release report (4 March 1998) noted, "Mr Afoa appears to be genuinely remorseful for harm he caused his victim and the shame he has brought upon his family", and in evidence to the Tribunal he expressed guilt and shame for the offence. In my opinion, his evidence to the Tribunal was a genuine expression of his true feelings given spontaneously and without the benefit of legal representation.

The applicant's behaviour while serving his sentence sends mixed signals. The applicant faced a number of charges within the prison system ranging from insulting language, failing to attend muster, on three occasions for fighting and on one occasion for a positive urine test.

The applicant gave evidence he had difficulty in adjusting to the prison environment. He acknowledged being in trouble on a few occasions for insubordination and fighting resulting in a transfer. Initially he was held in remand at Long Bay gaol, then at his request was moved to Parklea correction centre to be closer to his grandparents who lived in Blacktown. He got into trouble at Parklea for fighting and after about twelve months there, was transferred to Cessnock correction centre. Some months later he was transferred to a minimum security centre at Muswellbrook where it was alleged he was a ringleader in a riot. He claimed to have been wrongly accused of this by a particular officer and complained to a superior officer who informed him it was "only an allegation" and nothing more was heard of it. In the event he was moved with a higher security classification to Grafton, a medium security centre, for six months.

Six months later he regained his minimum security classification and was shifted to Junee correction centre, where he remained until it was closed down. He completed his sentence at Bathurst correction centre. While in Bathurst he completed a number of self improvement courses including drug and alcohol and anger management programs as well as receiving counselling. Maria Ridge noted in her report that when his progress was discussed with the drug and alcohol worker,

"...it was reported that Mr Afoa is open and honest regarding his past use of alcohol, he has a good understanding of the impact of alcohol abuse, and has indicated that abstinence from alcohol is imperative in his case." Tdocs pg 150

The report recommended release on parole. Maria Ridge wrote:

"Correctional Centre History

Mr Afoa has been housed at Bathurst Correctional Centre since January, 1998. He is employed in the upholstery shop where he is described as a willing worker. Both his work supervisor and the wing officer consider Mr Afoa a polite inmate who causes no management problems.

The inmate has incurred a number of internal charges during his incarceration. Mr Afoa stated that he found the separation from his family difficult and admits that at times he took his resentment out on custodial staff. He also claims that "fighting charges" were a matter of self-defence.

In March, 1997, whilst at St Heliers Correctional Centre, Mr Afoa had his classification reduced from C2 to B and reclassified to Grafton Correctional Centre following charges of Not Comply with Routine and allegations that he was a disruptive element."

It is noted that the bulk of the internal breaches occurred in the early stages of the applicant's sentence when his behaviour and attitude were noted to be erratic. The material before the Tribunal indicates a more positive and settled attitude as he approached release. In April 1998 the Prison Governor commented, "Improvement in conduct and industry indicates this inmate is preparing for release. Will need supervision if he is to succeed on parole." pg 160 tdocs

Since release on parole on 26 May 1998 the objective signs of rehabilitation have been encouraging. The applicant has in that time resided with his family in Melbourne. A condition of his parole is that the applicant totally abstain from alcohol. The applicant said that he has abided by the terms of his parole and realises the deleterious effects alcohol has had on his behaviour in the past. He says he has not had any alcohol since the offence and intends to continue that way. Initially the applicant was required to report twice weekly to parole authorities, but this has since been reduced to monthly reporting as at the date of this hearing. He has attended rehabilitation courses conducted by the Salvation Army and Dandenong Corrective Services. He also reports weekly to immigration authorities as a condition of release from immigration detention.

In September 1998 the applicant commenced employment as a factory hand with a printing company in Melbourne where he is currently employed. His status is part time and he is paid at an hourly rate. He has been averaging 30 - 40 hours work per week. He has a tax file number and is a PAYE taxpayer.

The third factor referred to in the policy is the deterrence factor (paragraph 14), that is, the likelihood that deportation would be likely to prevent or discourage the commission of like offences by other persons.

It was made plain by the Judge in sentencing the applicant, that the element of deterrence figured prominently in his sentencing considerations. He said:

"It was a savage, brutal assault on a defenceless man and the question of public deterrence, in my view, is one of great significance, although I take into account the need for rehabilitation and the subject features. The overall feature which stands out clearly is the circumstances of this attack and the need to bear in mind that the Courts will not tolerate behaviour of this nature."

Paragraph 14 of the policy reads:

"It is the Government's view that this factor may be relevant to protecting the Australian community in various ways:

(a) the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and

(b) the deportation of a potential deportee who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from committing new offences. For example, the potential deportee may be a ringleader whose deportation may reduce the likelihood that his or her associates will commit other offences.

Decision makers should have due regard to the Government's view in this respect."

One element of this factor is directed at persons engaged in organised criminal behaviour. That is not relevant here where what occurred was a random criminal act.

The other element of this factor appears to be designed to send a message to non-citizens generally; in practical terms in the applicant's case presumably will be received with greater emphasis by members of the Samoan community. However I doubt the relevance of this factor in the present circumstances in achieving the stated objective of deterrence. This is so because the applicant is away from former associates interstate. He is in the process of re-establishing his life with his family in Melbourne and is taking an active part in youth affairs within his Church community. To disregard these matters and deport the applicant as a deterrent to others is likely, in the eyes of non-citizens, to diminish their notion of Australia as a fair and just society which takes into account all of the persons' circumstances including the persons' efforts at rehabilitation.

In Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100 Brennan J remarked that rehabilitation is never certain whatever the circumstances. In the present circumstances, on all of the evidence before me, the risk of recidivism is low. The applicant is in gainful employment, and with family support, a positive outlook and appreciation of the danger of alcohol abuse, is I think, entitled to a favourable risk assessment.

Turning to the common or other considerations relevant in the present case. They essentially concern questions of hardship to the applicant and his family.

Mrs Afoa, the applicant's mother, migrated to Australia in 1992 with her family (husband and the three children of the marriage, two sons and a daughter). The family lived in Sydney at first before moving to Melbourne in 1993.

Despite the long periods of physical separation from his immediate family while growing up, I am satisfied a close family bond exists. The applicant maintained regular contact by telephone with his family while in prison and two or three times a month, his mother made the long journey from Melbourne to New South Wales by public transport (bus and train) to visit her son in the various institutions he served his sentence.

In evidence, both Mr and Mrs Afoa were supportive of the applicant. Mrs Afoa said she has noticed a changed attitude for the better in her son since his release on parole. She said that he is helpful and kind to family members. He pays board to his mother and has also financially assisted a brother and a sister with their 1999 school year expenses, as well as his 18 year old brother.

Mr Afoa is also pleased that the applicant has been reunited with his family and away from his former associates in New South Wales. He is willing to help the applicant in any way he reasonably can. The family accommodation in Melbourne is a four bedroom residence where they have lived for three years. Both Mr and Mrs Afoa are employed. The family are of the Seventh Day Adventist faith and do not keep alcohol in the home.

The applicant's mother and stepfather acquired Australian citizenship in 1996. The applicant's maternal grandparents with whom he spent most of his early years, his three aunts and two uncles (all living in Australia) are also Australian citizens.

The applicant has never known his natural father. In November 1993 he travelled to Western Samoa for two months and stayed with his stepfather's relatives while trying unsuccessfully to locate his father. The applicant does not have any known relatives remaining in Western Samoa or in New Zealand.

I accept that deportation would cause hardship both to the applicant and his family. Effectively the applicant has no ties to Western Samoa or New Zealand. His family have settled in Australia and are now citizens of this country and to deport the applicant, which would permanently bar him from re-entering this country, would, I am satisfied, cause significant hardship and distress not only to the applicant but also to his mother, stepfather and their children.

Conclusion

Having considered all of the evidence, material and submissions before the Tribunal and weighing up all of the matters required to be taken into consideration in the policy direction, having regard to the appropriate weight to be given to the various considerations, I have decided that the decision under review should be set aside.

I am satisfied, notwithstanding the undoubted seriousness of the crime, that in the context of community protection, given the applicant's favourable prospects of rehabilitation, his age and the likelihood of being able to make a positive future contribution to this country, that the safety and welfare of the Australian community is not subject to an unacceptable risk by his continued presence in the community.

I certify that this and the 13 preceding pages are a true copy of the decision and reasons for decision herein of

Deputy President B.M. Forrest

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

Associate

Date/s of Hearing 28 January 1999

Date of Decision 12 February 1999

Applicant in person

Respondent Ms B. Quayle, departmental advocate