Koh and Minister for Immigration and Multicultural Affairs [2000] AATA 409 (25 May 2000)

Last Updated: 31 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 409

ADMINISTRATIVE APPEALS TRIBUNAL )

) No w1999/151

GENERAL ADMINISTRATIVE DIVISION )

Re KIAN CHONG KOH

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President, TE Barnett

Date 25 May 2000

Place Perth

Decision In accordance with Section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. The Tribunal remits the matter to the Respondent with a direction that the applicant not be deported.

......(Sgd) TE Barnett.......................

Deputy President

CATCHWORDS

IMMIGRATION - Deportation of non citizen resident for less than 10 years - 5 offences arising out of same set of circumstances - migrated to Australia from Malaysia at age 21 - evidence that criminal behaviour was contributed to by frontal lobe damage sustained in car accident at age 16, alcohol and drugs and peer pressure - supportive family network - good employment prospects - genuine remorse shown - low risk of recidivism - deportation order set aside.

Administrative Appeals Tribunal Act 1975 - s.37

Migration Act 1958 - ss. 200, 201 and 499

REASONS FOR DECISION

25 May 2000 Deputy President, TE Barnett

1. The applicant, Kian Chong Koh, seeks a review of the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") dated 3 April 1999 to deport him from Australia pursuant to the powers conferred by s.200 and s.201 of the Migration Act 1598 ("the Act").

2. At the hearing, Mr J Singh represented the applicant and Ms L Magro represented the respondent.

3. In addition to the s.37 documents, the following documentation was tendered in evidence:

Exhibit A1a) - d) Reports of Dr Galhenage dated 02.97, 07.03.97, 26.03.97 and 10.08.99.

Exhibit A2 Commercial documents relating to HT Koh.

Exhibit A3 Transcript of Supreme Court proceedings dated 01.04.97 pages 1 to 24.

Exhibit A4 Statement of Michael Lee Chi Vui dated 09.08.96

Exhibit A5 Supreme Court indictment dated 04.03.96

Exhibit A6 Statements of academic records of the applicant

Exhibit A7 Brief for the prosecution

Exhibit A8 Medical report on Ms. Liew Chin Len by Dr Raj

Exhibit R1 Letter to Dr Cheng dated 12.08.96

Exhibit R2 Psychiatric report of Dr Febbo dated 18.11.99

Exhibit R3 Violent offenders treatment program report dated 07.01.99

Exhibit R4 Ministry of Justice community corrections file, No 9705826

factual background

4. The applicant was born on 10 August 1971 (now aged 28) in Malaysia and retains Malaysian citizenship. He first arrived in Australia as a permanent resident on 20 January 1993 accompanied by his family. The applicant's family consists of both parents (father - Koh Han Ting and mother, Liaw Chin Len) and 2 younger brothers, Kian Leong Koh (aged 24) and Kian Yoong Koh (aged 21).

5. On 5 August 1996, the applicant was involved in a series of crimes against a fellow classmate, Michael Lee Chi Vui ("Michael"). The two attended the Central Metropolitan College TAFE where they were both studying a course in Office Administration. The applicant telephoned Michael on 5 August 1996 saying he wanted to speak to him at an entertainment venue known as "Pot Black". The applicant stated that he wanted to see Michael as he had reason to believe that Michael had been talking about him behind his back at the College. The applicant contended that, as a result of this gossip, other people had begun avoiding him. The applicant gave evidence that he had been drinking excessively over the past fortnight, had taken a Rohypnol tablet and his memory of events was hazy. Much of the account of what occurred during this period came from the victim's statement and the court transcript.

6. Michael agreed to see the applicant the next day in the car park of "Pot Black". Whilst in Michael's car, the applicant accused Michael of talking about him behind his back and then stated that they became embroiled in an argument. The applicant pulled a knife on Michael which he held to the left side of his neck and after a while of arguing, made a small cut into the side of Michael's neck. The applicant then struck Michael in the face, causing his lip to swell, and demanded that he pay the sum of $150 as compensation immediately. Michael's statement (Exhibit R4) indicated that he gave the applicant $105 (which was all he had on him) promising to give him the balance at a later date. Michael's statement further indicated that the applicant said that as Michael couldn't pay the full amount immediately, he would have to come up with another $400 later in the day, otherwise he would harm Michael and his family. Michael agreed to approach his mother and get the additional money. On the way out of the car, the applicant took some items from the car, which Michael agreed (under pressure) that he could have.

7. Michael paid over the money to the applicant at the stipulated time, from funds borrowed from his mother. Later that same night, the applicant rang Michael again asking him to return to Pot Black. He stated that the money had already been spent on drinking with friends and he now wanted to play snooker with him. The applicant stated that if Michael won the game of snooker, he would not have to pay any more funds over to him, but if he lost, he would be required to pay $500. Michael complained that he didn't have that amount of money and was unable to come out to Pot Black. The applicant then stated, in that case, he wanted $200 by the next day, which would finalise the matter. Michael told his mother about the conversation and then reported the matter to the police.

8. Michael's statement indicated that he gave the applicant the $200, who then told him that "Ricky" (a friend) wanted $100 as well or he would be harmed. It was alleged that the applicant said that he was required to cut Michael with a knife in order to satisfy Ricky's demands. In the end the applicant kicked Michael and then the police arrived and took the applicant into custody

9. The applicant was charged with the following offences and received the following sentences:

Date Offence Penalty

05.08.96 Demand property or money with threats 3 years imprisonment

05.08.96 Armed Robbery 3 years imprisonment (concurrent)

05.08.96 Demand money or property with threats 2 years imprisonment (cumulative)

05.08.96 Armed Robbery 1 year imprisonment (concurrent)

05.08.96 Demand money or property with threats 1 year imprisonment (cumulative)

10. The applicant was sentenced to a total of 6 years imprisonment, but was released on parole on 1 April 1999 (after only 2 years in prison). On 3 April 1999 a delegate of the Minister made an Order to deport the applicant and that Order was served on the applicant on 16 April 1999. (The applicant was first notified of this intention to consider him for deportation on 3 June 1997).

applicant's case

11. Dr Galhenage, a psychiatrist of 20 years experience in both the private and public sectors, gave evidence that the applicant has sustained right frontal lobe damage to his brain following a motor vehicle accident in Malaysia on 24 March 1988 (when he was aged 16). Following two weeks of hospitalisation, the applicant was left with a "frontal lobe syndrome" characterised by mood instability and poor impulse control. Dr Galhenage saw the applicant on 25 occasions between November 1996 and August 1999 and treated him for depression and poor mood and impulse control. Dr Galhenage stated that whilst the frontal lobe damage provided some explanation about the applicant's behaviour, it failed to give a complete picture. The applicant stated that he had been drinking quite heavily over the two-week period prior to the incidents against Michael. He also stated that he had taken a Rohypnol tablet sometime in the 36 hour period leading up to the assaults and demands for money. Dr Galhenage stated that the alcohol/drugs, combined with the pre-existing frontal lobe damage, may have possibly caused some form of psychosis in the applicant, which would have had an adverse impact on his judgement and awareness.

12. Dr S Febbo, a Fellow of the Royal Australian and New Zealand College of Psychiatrists, reviewed the applicant for a medico-legal assessment on 8 November 1999 and a report was issued on 19 November 1999 (Exhibit R2). Dr Febbo concluded that there was "no evidence to suggest any criminal activity either before or after the offences described." In addition, he felt that there was no history to suggest a "conduct disorder of childhood" that the applicant appeared to express genuine remorse over his actions in relation to the victim. Dr Febbo indicated that the offences were connected to the disinhibiting effect of alcohol and drug use, peer pressure and some issues related to the former head injury. He concluded that the applicant's risk of re-offending was at "the low end of the scale" and that he posed little to no threat to the community in general. The Tribunal accepts the applicant's evidence of short term involvement with alcohol and drugs which is also supported by documents filed with the Tribunal at my request and copied to the respondent after conclusion of the hearing and not challenged by the respondent.

13. The applicant's family - both parents and his 2 siblings - gave evidence of a close knit family unit which provided mutual support to one another. The two younger brothers, in particular, gave evidence of the applicant cooking and caring for them in general when their parents were away on business trips to Malaysia. These business trips meant that both parents could be away from Australia for up to 6 or 7 months of the year in total. The brothers all shared common friends and interests as well (such as basketball). The applicant's mother, Mrs Liaw Chin Len, spoke of the special bond that existed between her and the applicant. In part this was due to the fact that he had been her only child for over 5 years until her second son was born in 1976. Culturally, the applicant, as the eldest son, holds a position very similar to his father as he assumes many of his responsibilities when the father is absent (such as caring for younger siblings). Mrs Len suffers from poor health and she described how the applicant sometime stays up with her during the night, attending to her needs and assists with all domestic tasks. Mr Koh Han Ting, the applicant's father, also described a close relationship with the applicant. Again this was partly because the applicant had been the only child for the first five years and also due to his position as the eldest of three sons. Until the accident, there had been an expectation that as the eldest son, the applicant would eventually become involved with, and later take over, the family business run by his parents. This had also been the applicant's understanding.

14. The applicant's community corrections officer, Ms B Cox, also gave evidence that since his release from prison the applicant has complied with all his parole conditions and where he has failed to attend an appointment with her, he has always telephoned in advance to advise her. She described the applicant as "polite and co-operative" and that such behaviour would rank "well above average" of all the clients she would encounter in her work. Ms Cox currently sees the applicant on a monthly basis and stated that she did not refer him on for further counselling as she felt that he had no presenting psychological problems.

15. The applicant's academic record from TAFE shows him to be an average student who passed most of his units in the Business Office Skills course. He felt that he had not done better as he had a poorer grasp of English due to migrating to Australia at age 21. He also felt that the influence of attending venues such as Pot Black and becoming a regular drinker had an adverse influence on his grades and life generally.

16. The applicant stated that being imprisoned had an awakening effect on his life. He contends that he initially had suicidal thoughts and felt great remorse and disgrace at his behaviour towards his friend. He stated that he missed his family and freedom and that he has been made "a better person" as a result of his imprisonment. The applicant completed an Aggression Control programme whilst in prison and feels that he is a much more assertive and rational person now, as opposed to aggressive. He also attended a Violent Offending Treatment Programme (Exhibit R3). The report suggested that "there is little evidence to suggest that Mr Koh has a long term problem with violent offending" and that the "current offences appear to have come about through his poor assertion skills, poor conflict management skills and associated ineffective decision making with encouragement from peers". The report went on to say that "Mr Koh is aware of these problems and has worked at changing his beliefs and increasing his skills". The providers of the course felt that the applicant was protected to some degree from continuing to behave in a similar manner by a "very strong pro-social family" and access to employment and accommodation.

17. The applicant's employment history indicates that he has been in regular employment since arriving in Australia. He worked for his father for a time in his Perth office attending to computing matters, mailing and transport. He has also worked in casual part time waitering positions at two Perth restaurants and in a pie factory (for about 2 ½ months after being released from prison). He is currently working for his father in the same role as before.

18. In summary, the applicant contends that greater insight into his former behaviour, his ongoing counselling with Ms Cox, the Community Corrections Officer, and formation of new strategies for dealing with conflict, his abstinence from alcohol and drugs and his strong family support means there is little to no risk of his re-offending against the Australian community. The applicant is also currently taking medication prescribed by his psychiatrist.

respondent's case

19. The relevant provisions of the Migration Act are sections 200 and 201 in relation to deportation matters. The Tribunal is bound to apply General Direction Number 9 under section 499, which indicates that there are two primary considerations for the decision-maker to take into account: First by the expectations of the Australian community and secondly, the best interest of any child involved (not relevant in this case).

20. The expectations of the Australian community are that it will be protected and not put at risk by serious criminal behaviour (particularly violent behaviour) and that persons convicted of such crimes be removed from Australia.

21. The respondent's first submissions are that the applicant's offences fall into the "very serious" category of offences, namely, armed robbery and crimes involving violence. Such crimes are viewed as particularly threatening to the welfare of the Australian community and the applicant received a total of 6 years imprisonment for these offences.

22. The respondent submitted that the applicant was at risk of re-offending because of the statement made from two psychologists from the Violent Offending Treatment Programme where it was stated that " ... he still appears and acts in a passive manner which may become a problem for him should a similar chain of events occur" (Exhibit R3 page 3). Further to this, Dr Galhenage stated in his report dated 26 March 1997 that the applicant did behave in a manner that was "far below his chronological age of 25..."

23. Although the respondent concedes that both Doctors Galhenage and Febbo did place the applicant's risk of re-offending at the low end of the scale, it was submitted that his medical condition, immaturity and willingness to blame his peers for the offending behaviour, placed him as an unacceptable risk to the welfare and safety of the Australian community. As such, the respondent concluded that he applicant's risk of recidivism was to be viewed as high enough to warrant his deportation from Australia.

24. The respondent submitted that the applicant would suffer no real hardship due to deportation as not only had he spent the first 21 years of his life in Malaysia, but he would also have the support of extended family, the use of the family home based in Malaysia and his parents could visit regularly given they spend approximately half the year in Malaysia for business purposes in any case.

tribunal's findings

25. The Tribunal accepts that the applicant's criminal behaviour, especially his violent and aggressive behaviour towards his former friend Michael, was serious and unacceptable. This was reflected in the sentencing Judge's comments when he said "The facts reveal that this is an extremely serious series of offences" (Exhibit R4) and the 6 year prison sentence imposed.

26. The respondent argues that recidivism is a real risk should the applicant be placed in similar circumstances as his medical condition remains the same and all his other circumstances (such as family support and employment remain identical). However, the tribunal heard expert evidence which supported the applicant's contention that there is a very low degree of risk in respect to re-offending. The offences, although serious in nature, arose essentially out of one series of events lasting just over 24 hours. The Tribunal accepts the medical evidence that the main precursors to the offences in question were a combination of the effects of the frontal lobe damage (such as mood instability and poor impulse control), the use of alcohol and Rohypnol and some degree of peer pressure.

27. There was no evidence presented that the applicant had displayed such criminal behaviour prior to the events in question on 5 August 1996 and he clearly has not committed any further offences since his release from prison. The Tribunal accepts that the applicant has expressed genuine remorse and that he now accepts full responsibility for his actions. It seems he has benefited from attending courses on anger management and psychological treatment in relation to violent offending. The facilitators of this course and treatment programme have indicated that there is little risk that the applicant will repeat the behaviour patterns, which were responsible for his imprisonment in the first place. Although it was acknowledged by the facilitators that there was some risk that the applicant's passive manner could become "a problem should a similar chain of events occur", this was offset by other positive indicators in his life such as strong family support, abstinence from alcohol and drugs, being employed and avoiding previous peer groups. The Tribunal accepts the expert evidence before it that the risk of the applicant re-offending is now low.

28. Other matters to be taken into account by the Tribunal include hardship to the applicant. It is accepted that some hardship to the applicant would exist if he were to be deported. The applicant's father, Mr Koh Han Ting, gave evidence that the convictions recorded against his son's name would result in a great deal of family shame, which would deprive the applicant of full extended family support and involvement in the family business. However, balancing against this, is the fact that there is a family home based in Malaysia and both parents are currently maintaining ties with Malaysia and frequently visit there for business purposes. In addition to this, the applicant still remains a Malaysian citizen, as do his parents (possibly for business reasons) and siblings.

29. There would also exist some hardship to the applicant's family should he be deported. This hardship would be exacerbated by the family's plans to eventually withdraw from the family business in Malaysia and to become Australian citizens, which would mean that the frequent visits to Malaysia would cease. The applicant's brothers gave clear evidence that they look towards a future life based in Australia and as such, deportation of the applicant would pose a real conflict situation for them.

30. The Tribunal believes that with all the support the applicant is presently receiving, he has the potential to make a useful contribution to the Australian community.

decision

31. In accordance with Section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. The Tribunal remits the matter to the Respondent with a direction that the applicant not be deported.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President, TE Barnett

Signed: .................(Sgd) C O'Hara......................

Associate

Date/s of Hearing 13 and 14 March 2000

Date of Decision 25 May 2000

Counsel for the Applicant Mr J Singh

Solicitor for the Applicant James Chong & Co

Counsel for the Respondent Ms L Magro

Solicitor for the Respondent Australian Government Solicitor