Bustescu and Minister for Immigration and Multicultural Affairs [2000] AATA 819 (14 September 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 819

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/104

GENERAL ADMINISTRATIVE DIVISION )

Re DAN IONEL BUSTESCU

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date 14 September 2000

Place Sydney

Decision The decision under review is affirmed.

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

BJ McMahon

Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP - deportation - conviction and sentence for robbery being armed - home invasion - extensive record of previous convictions for assault and property-related offences - high risk of recidivism - protection of the Australian community - serious nature of crimes - expectation of the Australian community that non-citizens who are convicted of crimes that are abhorrent to the Australian community will be removed from Australia - best interest of the child - hardship to applicant - applicant of Roma ethnicity - discrimination against Roma in Romania - hardship to applicant's family and fiance - discretion not exercised in applicant's favour.

Administrative Appeals Tribunal Act 1975 - s 44

Home Invasion (Occupants Protection) Act 1998 (NSW)

Migration Act 1958 - ss 200, 499

Bustescu v Minister for Immigration & Multicultural Affairs [1999] AATA 730

Bustescu v Minister for Immigration & Multicultural Affairs [1999] FCA 1713

Minister for Immigration & Ethnic Affairs v Teoh (1995) 128 ALR 353

Vaitaiki v Minister for Immigration & Multicultural Affairs [1999] AATA 174

International Covenant on Civil and Political Rights - Art. 6,7

REASONS FOR DECISION

14 September 2000 Mr B.J. McMahon (Deputy President)

1. This is an application to review a decision to deport the applicant made by a delegate of the Minister on 24 August 1998, pursuant to section 200 of the Migration Act 1958. The decision has previously been reviewed by this Tribunal. On 1 September 1999, Deputy President Chappell affirmed it. His decision was then subject to appeal to the Federal Court, pursuant to section 44 of the Administrative Appeals Tribunal Act 1975. On 10 December 1999, Sackville J found that there had been an error of law in the reasons and remitted the matter to this Tribunal for re- determination.

2. The facts are set out extensively in Deputy President Chappell's reasons, and in Sackville J's judgement. As both documents are readily accessible, it will not be necessary to repeat those facts and conclusions upon which the parties are agreed.

3. The principal area of concern in the Federal Court was an apparent failure to consider the hardship that deportation would cause the applicant by reason of the fact that he is a Roma (gypsy) and that he was to be deported to Romania, where treatment of Roma people has given rise to concern.

4. In particular, the Court considered that the Tribunal did not indicate which view it took of the evidence of Roma conditions. Mr Mitin and Reverend Vesa claimed that the applicant was at risk of being beaten and having his house burned (or worse) because he was a Roma. There was other evidence which His Honour described as "somewhat more sober" concerning the likelihood of hardship to the applicant in Romania. His Honour found that the reasoning of the Tribunal did not indicate what view was taken of the evidence and that accordingly, it failed in its statutory duty. The Court found that the Tribunal failed to make findings on a material question of fact "namely the nature and degree of hardship the applicant was likely to experience, or was at risk of experiencing, if deported to Romania". This (he said) constituted an error of law. It is not readily apparent where the phrase "likely to experience or was at risk of experiencing" came from. It does not appear in paragraph 22 of the Ministerial Direction which is accurately reproduced on page 8 of His Honour's judgement.

5. In preparation for the re-hearing, the applicant's solicitor obtained further independent evidence concerning conditions of RoHima in Romania. After considering this, he indicated that he no longer relied upon the extreme evidence of Mr Mitin and Reverend Vesa. Instead, reliance was placed upon written evidence which appears to be less subjective in its assessment of relevant conditions.

6. The issues remaining, therefore, were as follows:

* The primary consideration of protection of the Australian community was to be reconsidered having regard to the risk of recidivism.

* That primary consideration was also to be reconsidered having regard to the alleged abhorrent nature of the applicant's crimes.

* Since the previous hearing, the applicant has fathered a child. The best interests of that child now have to be considered as a primary consideration.

* As a result of the birth of the child, the degree of hardship to the applicant, the child's mother and their respective families needed to be reconsidered.

* The application of paragraphs 25 to 31 of the relevant Ministerial Direction dealing with Australia's international obligations would have to be reconsidered, possibly in the light of the additional evidence concerning conditions in Romania.

7. Paragraph 9 of the Minister's Direction requires me to assess the level of risk to the community in ensuring its protection. In doing so, I am to have regard to the seriousness and nature of the crime and the risk of recidivism. The crime giving rise to the deportation order was technically described as "robbery being armed" but was carried out in circumstances which are commonly referred to as a "home invasion". The applicant was sentenced to a term of imprisonment of four years with an additional two years after a successful appeal reduced his sentence. There is no question concerning the seriousness of the crime in which he was involved. It is, in fact, one of the specific examples of serious crimes described in paragraph 11(d) of the Minister's Direction.

8. The risk of recidivism was found by Deputy President Chappell to be moderate to high. On my assessment of the evidence, I would disagree. I consider the risk to be unequivocally high. Every indicator of future conduct points to the almost certain reoccurence of criminal behaviour.

9. The applicant arrived in Australia two days before his 13^th birthday on 22 March 1987. Within two years, he had begun his life of crime. Between 12 November 1988 and 2 March 1992, he was continually brought before various Children's Courts where he was charged with, and convicted of, a miscellany of crimes. These included larceny, car stealing, breaking entering and stealing, malicious damage, assault, maliciously setting fire to a motor vehicle and breach of probation. From these crimes he graduated to a charge of armed robbery in company on 4 May 1992. For his part in that robbery, he was sentenced to a term of 12 months minimum imprisonment with an additional term of 18 months.

10. After a review of the circumstances and of his background, the Minister's delegate decided not to deport him on that occasion. However, on 13 May 1993, he was given a formal written warning that he could be deported if there were any further convictions. He gave evidence before Deputy President Chappell that he regarded this warning as some sort of a joke. He certainly took no notice of it. Whilst he was on parole, he committed the home invasion in company with others on 23 August 1994. This most serious crime was committed in complete disregard both of his parole obligations, and of the jeopardy in which he stood following the deportation warning. Neither the grant of parole, nor the failure to deport, was taken seriously. The applicant continued his criminal career undeterred. There could be fewer stronger indications of his likely conduct in the future.

11. In addition to these convictions for violent crimes, he was convicted on 14 January 1999 for perjury. After his arrest in connection with the home invasion incident, he was said to have assisted the police and to have made statements which would have incriminated some of his co-accused. This was recognised by Judge Nield who imposed a lighter sentence because of that fact. His Honour said:

"In determining the appropriate sentence to impose on the prisoner, I have taken into account, in addition to those matters that I have mentioned already, that the prisoner has pleaded guilty, although realistically he could not have done otherwise, and that he has expressed his contrition, but I think that he has not given one moment's thought to what he did and the effect that what he did had upon Mr and Mrs Princi. Balancing everything, except assistance to authorities, I have determined that the appropriate sentence should be penal servitude for eleven years. I propose to reduce that period by three years six months for the prisoner's assistance to the authorities. I propose to apportion the period of seven years six months to a minimum term of five years and an additional term of two years six months. I do this because the prisoner is a young man and his age makes it necessary and desirable that the additional term be longer than one quarter of seven years six months and I say this notwithstanding that the prisoner has breached parole conditions and that I doubt that he will be rehabilitated."

12. Whilst he was in prison, the applicant asserts that the co-accused had intimidated him and had smuggled money to other inmates in the prison to ensure that he was assaulted. He says that he was in fact stabbed in the exercise yard. He connected his proposed evidence with this incident. At the trial of the co-accused, therefore, he denied that he had made the relevant statements and denied that the information he had given to the police was true. The result of this was that he was subsequently charged with perjury.

13. At the perjury hearing he was legally represented. Nevertheless, he did not tell the District Court Judge of these alleged threats. So far as I can make out, no explanation was offered to the Court for his behaviour. As I said, he received a sentence of 12 months imprisonment. The incident says two things about the applicant's attitude to the legal system. Firstly, he was prepared to accept a substantial reduction in his sentence because of information he had given to the police. When called upon to substantiate that information, he refused. The reduction which he received of three years six months for assistance to the authorities was much more valuable than the additional sentence of 12 months which he received virtually for failing to make good on that assistance. Secondly, he appears to have committed perjury without concern and has demonstrated little respect for sworn evidence. This attitude to the legal system is consistent with his behaviour whilst on parole and whilst under threat of deportation.

14. He has spent most of the time between 1992 and the present in prison. His record of offences there also gives no cause for optimism for the future. His large number of offences between 1 September 1992 and 14 August 1999 include offences for fighting, for refusing urine tests and, on two occasions, for having drugs detected in his urine.

15. The home invasion offence occurred whilst he was on parole. This matches the pattern of earlier behaviour when he breached probation. He appears to have no understanding of his obligations and no intention of reforming. Judge Nield observed:

"He was subject to parole when he participated in the subject armed robbery and his breach of parole is an aggravating feature of the subject armed robbery. I think that it is obvious that he is somewhat more than a petty criminal, that he has learnt nothing from the penalties imposed on him for earlier offences, that he is not prepared to accept the restraint imposed on him (by the conditions of his parole) and that he is unlikely to be rehabilitated."

The applicant has been refused parole on several occasions. No doubt the fact that he has committed further crimes while previously on parole, or in earlier years on probation, influenced the parole board in its decisions. If they were apprehensive that he may yet again re-offend if allowed into the community, then they would be sharing my own apprehensions.

16. If he were not deported and finally achieved release, he would have poor job prospects. The only evidence on this aspect of his future came from Mr Wright, an Aboriginal pre and post-release officer with the NSW Department of Corrective Services. In his letter he said:

"Whilst it is difficult to find employment at the moment, I will endeavour to do my best for this young man as I believe he is worthy of a second chance. If not successful in finding employment, we will inquire about TAFE courses and any other relevant training that may interest him."

This is hardly an optimistic forecast for his future. His poor job prospects, combined with his history of recidivism in the face of many warnings (including the prior deportation warning), show a high risk of reoffending. Mr Wright spoke of affording the applicant "a second chance". He has, of course, had many chances and has taken advantage of none of them. I find that the protection of the Australian community, a primary consideration, would require the Government to protect it from the actions of the applicant and to take action to remove unacceptable levels of a risk of further crime.

17. The other primary consideration concerns the interests of the applicant's child. Evidence was given by Ms Tattersall. With relatives, she began visiting Cessnock prison as part of their church service. It was after her second visit that she first met the applicant in January 1999. The decision to deport him had been made on 24 August 1998. As Ms Tattersall continued to visit the applicant in prison, he made this known to her. She continued to visit him, however, as a relationship developed. On 27 September 1999, while she was visiting the applicant at Muswellbrook prison, they had sexual intercourse. In November 1999, she discovered that she was pregnant. No issue was raised before me doubting the applicant's responsibility for the child. He was born on 12 June 2000. By this time, the deportation order had been affirmed by Deputy President Chappell on 1 September 1999. If the dates are correct, the sexual intercourse also took place after the Tribunal's decision had been delivered.

18. The child is now approximately three months old. Ms Tattersall has taken him to the prison on a few occasions. She believes that she has seen a real change in the applicant's demeanour as a result. They have discussed what might happen if he is obliged to return to Romania. Ms Tattersall is undecided whether she would go with him or not. The baby, of course, would stay with her, depending on her decision.

19. Ms Tattersall's family has been, to use her words, "fabulously supportive" (except for her grandmother). She presently lives in a two bedroom flat with her uncle and the baby. Her mother lives a 15 minute drive away and her sister some ten minutes away. She also has two brothers who live nearby. Her younger brother, aged 22, is particularly attached to the baby and is affectionate towards him. She agreed that there were many more opportunities for education and health care if the baby stayed in Australia. Her father has indicated that he wished to pay for a private education for his grandchild.

20. I have concluded that the best interests of the child will be served if it remains with its mother and receives the care of his mother's family. I have rejected the general starting point that the best interests of the child would be served if it remained with both parents. I have concluded that if the applicant stays in Australia, he will resume his life of crime and will be separated for long periods from his child. If he returns to Romania, it would not be in the best interests of the child to travel with him, always assuming that his mother decided to go to Romania. He would be deprived of the affection and support of his mother's family if that course were adopted.

21. Apart from these two primary considerations, the Ministerial Direction calls for other matters to be taken into account but to be given less weight than the primary considerations. These include the degree of hardship which may be suffered by the applicant and the degree of hardship to any Australian citizens, including his family.

22. Hardship to the applicant concerns almost exclusively the way his life would be affected as a Roma when he returned to Romania. The applicant has no contact with any family members in that country and has spent half his life in this country. I acknowledge, as Deputy President Chappell did, that the applicant may have some difficulty in settling into what is, for him, a strange country. He is, however, aged only 26. His ability to survive and adapt would be much greater than that of an older man.

23. As to the special hardship that might arise from the fact that he is a Roma, the independent evidence which was tendered at the hearing gave different impressions. In a report from the Research Directorate of the Immigration and Refugee Board Ottawa, Canada, the Roma population of Romania was given as between 400,000 (the official figure) and 3,000,000. The report noted that there were social attitudes, including "hate speech" based on a number of stereotypical notions which were prevalent in the country. Nevertheless, the view of the report was that violence perpetrated against Roma was more likely to be at the hands of the police than the general public. It ranged from everyday harassment to raids on Roma settlements. According to an Amnesty International Report for the year 2000, the population of Romania is 22.6 million. If there are in fact 3 million Roma in that country, the applicant would join a significantly large group. There is nothing before me to indicate that conditions for the applicant would be any worse than those encountered by other members of that group.

24. Other evidence indicates, however, that prejudicial official behaviour is directed at many more groups than the Roma. The 1999 report on Romania released by the Bureau of Democracy, Human Rights and Labour, US Department of State, on 25 February 2000 noted:

"The Government generally respected the rights of its citizens; however, several serious problems remained. Some police officers continued to beat detainees; and in several cases such beatings reportedly led to deaths. The Government investigated police officers suspected of abuse and in some cases indicted those accused of criminal activities in military courts. However, investigations of police abuses are generally lengthy and inconclusive and rarely result in prosecution or punishment. Whilst some progress has been made in reforming the police, cases of inhuman and degrading treatment continue to be reported. The Government promised important modifications to the Criminal Code, but no such changes were made at year's end. The Government improved the poor living conditions in prisons and implemented vocational training programs; however, overcrowding remains a serious problem. The judiciary remains subject to executive branch influence, although there were signs of increasing influence during the year. Violence and discrimination against women remained serious problems. There is a large number of impoverished and apparently homeless children in large cities. Societal harassment of religious minorities still remains a problem and religious groups not officially recognised by the Government sometimes complain that they receive discriminatory treatment from authorities. Discrimination against Roma continued. Trafficking in women and girls for the purpose of forced prostitution was a problem."

25. On the evidence before me, the degree of hardship which the applicant may encounter, merely by reason of the fact that he is a Roma, does not override the much greater weight to be accorded to the primary considerations. I do not wish to denigrate or belittle the prejudice which Roma might encounter in Romania. Viewed from the perspective of this country, however, and the primary need to protect this community, it is a matter of lower import.

26. The hardship which Ms Tattersall will experience if the applicant is deported will depend partly on whether she decides to accompany him. If she does, then she will also suffer the hardship of adjustment to a strange country without the support of her family. If she decides not to accompany him, she will suffer the hardship of separation. It has to be observed, however, as pointed out in paragraph 22 of the Ministerial Direction, that ties developed after the liability for deportation arose are to be given less weight. In my view, Ms Tattersall, an intelligent woman of age 23, knew of the risks inherent in her conduct. She knew the applicant was subject to a deportation order. Although she may not have realised the full import of its effect until recently, she must be accounted responsible for her own actions. The hardship which she will suffer, no matter which course she adopts, is not to be given significant weight.

27. Apart from the hardship which may be suffered by the applicant's grandmother, there is no significant amount of hardship to any other family member. His grandmother gave evidence on the previous occasion that she might even return to Romania with him. Whether she does or not, however, the anguish that she will feel must be subordinated to the higher demands of the primary considerations.

28. One of these is referred to in paragraph 15 of the Ministerial Direction. Deportation will be appropriate simply because the nature of the offence is such that the Australian community would expect the person to be deported. The heading to this paragraph refers to such offences as "crimes abhorrent to the community". The heading asserts the community expectation that non-citizen perpetrators of such crimes should not be allowed to remain in the community. In my view, home invasion is an abhorrent crime.

29. On 23 August 1994 at about 9.30pm, a co-offender of the applicant knocked on the door of the home of Mr and Mrs Princi and asked if she could use the phone as her car had broken down. Three armed and masked men (one of the them the applicant) then entered the home, one pushing a gun in the face of Mrs Princi while demanding money and another pulling Mr Princi from his bed and tying his arms together and his legs together with a rope. Mr Princi was struck a number of times and Mrs Princi was threatened and her arms and legs also tied with rope. Drawers were rifled and money was taken. The attackers left only when the Princis' son arrived and fired a rifle, calling upon the attackers to leave. The effect of this planned invasion can be imagined. It was described by Judge Nield as follows:

"This short recital of the objective relevant facts cannot convey to the listener the full terror that the invasion of their home by three armed and masked men instilled in Mr and Mrs Princi. Mr Princi was aged 68 years and Mrs Princi was aged 63 years. Each was attacked by an armed and masked man. Each was threatened with a gun. Mr Princi was told that if he did not hand over the key to the safe he would be killed.

... Their bedroom was ransacked...

Each was hysterical by the time the police arrived - Constable Schofield said that they appeared "to be in shock and were visibly shaking". The effect upon them of what had happened to them has been considerable and this does not surprise me. The planned invasion of their home and effect upon them are parts of the objective seriousness of the offence committed by the prisoner and must not be overlooked."

30. As Matthews J pointed out in Vaitaiki [1999] AATA 174 at paragraph 56 and 57, there is no definition of an abhorrent crime in the Ministerial Direction. Without offering one, Her Honour referred to the Shorter Oxford Dictionary entry as conduct which would "cause one to shrink with horror". The Macquarie Dictionary suggests "exciting horror; detestable".

31. The circumstances of home invasions in general and the particular home invasion for which the applicant was convicted, in my mind, would be regarded by the community as falling within either of these suggested meanings. Community attitudes in general to the crime are reflected in the NSW Home Invasion (Occupants Protection) Act 1998. Section 5 of that Act provides:

"Parliament expressly declares that it is the public policy of the State of New South Wales that its citizens have a right to enjoy absolute safety from attack within dwelling houses from intruders.

The Act legalises self defence in such circumstances and reflects the general abhorrence in which the crime is held. In my view, this alone is sufficient to support the deportation of the applicant. A balance of all the other factors also supports the making of a deportation order.

32. There remains only the question of compliance with Australia's international obligations.

33. The applicant does not have refugee status. According to paragraph 29 of the Ministerial Direction, this in itself would not be a bar to the recognition of Australia's obligations under the Refugees Convention. On the evidence put before me, however, I hold that he would not be owed protection pursuant to Article 1A, as he would not be subject to persecution in the Convention sense on his return to Romania. At most, he may be subjected to discrimination. In any event, I regard the crime of home invasion as a particularly serious crime constituting a danger to the community of Australia. Article 33(2) would therefore exclude the applicant from claiming protection under the convention.

34. The only other international obligation is to be found in the International Covenant on Civil and Political Rights (ICCPR). Paragraph 26 of the Ministerial Direction indicates that this Convention contains an implicit non re-foulment (return) obligation where as a necessary or foreseeable consequence of expulsion, the person would face a real risk of violation of his or her human rights, such as being subjected to torture or the death penalty, whether or not lawfully imposed.

35. Article 6 provides:

"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life".

36. Article 7 provides:

"No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

37. The general rule acknowledged in Minister for Immigration and Ethnic Affairs v Teoh 128 ALR 353 is that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been incorporated into municipal law by statute and cannot operate as a direct source of individual rights and obligations under the law. The terms of ICCPR, therefore, do not form part of the domestic law of this country. The Court in Teoh found, however, that the ratification of a convention was a positive statement by the Executive Government of Australia to the world, and to the Australian people, that the Executive Government and its agencies would act in accordance with the Convention. It followed that in those circumstances, there was a legitimate expectation, in the absence of statutory or executive indications to the contrary, that administrative decision makers, including the Minister's delegate, would act in conformity with the Convention. Shortly after this decision, the then Attorney-General and Foreign Minister jointly issued a statement (as an Executive indication to the contrary) that Australians should not have a legitimate expectation that decision makers would act in conformity with any convention to which Australia was a party. That statement has been followed by draft legislation introduced by the present Government on 13 October 1999 under the title of Administrative Decisions (Effect of International Instruments) Bill 1999. So far as I am aware, it has not yet been enacted into law. Paragraphs 25 to 31 of the Ministerial Direction appear to be another "Executive indication to the contrary". My understanding, therefore, is that firstly, the ICCPR is not part of the domestic law of Australia, and secondly, no person has a legitimate expectation that the Minister's delegate will act in conformity with the Convention, except in so far as the Ministerial Direction provides otherwise.

38. The only relevant provision is to be found in paragraph 26. This does not include an indication that decision makers will consider themselves bound by all the terms of the Convention. It simply provides that the implied non-refoulment obligation will be enlivened only where the person would face a real risk of violation of his or her human rights, such as being subjected to torture or the death penalty, whether or not lawfully imposed. This is the only legitimate expectation sanctioned by an executive act.

39. It follows that it will have application only in its own terms. It will not be sufficient to point to the general features of life in Romania. It is not even sufficient to point to the general features of life for Romas who live in Romania. It is necessary to show that the likely consequences for the applicant would be the deprivation of the fundamental rights to which I have referred. It is only when this is demonstrated that the legitimate expectation of an implied non-refoulment can be relied upon. There is no evidence to support a finding of this nature in the present case. If the applicant is disadvantaged upon return to his country, such disadvantage cannot be described other than as discrimination and other than an element of the assessment of hardship.

40. For these reasons, the decision under review should be affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

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

Dominika Rajewski, Associate

Date of Hearing 07 September 2000

Date of Decision 14 September 2000

Representative for the Applicant Mr Ron Kessels

Representative for the Respondent Ms Juanita Kapel (DIMA)