Hui and Department of Immigration and Multicutural Affairs [1999] AATA 47 (28 January 1999)

Last Updated: 9 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 47

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/1426

GENERAL ADMINISTRATIVE DIVISION )

Re LOKENI HUI

Applicant

And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr BJ McMahon (Deputy President)

Date 28 January 1999

Place Sydney

Decision The decision under review is affirmed.

(Sgd) BJ McMahon

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

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - deportation - serious offences - aggravating circumstances - warnings issued - further serious offence - recidivist - relatively small contribution to Australian community - no hardship to brother in Australia if applicant deported - interests of children - deportation order affirmed

Migration Act 1958 ss 200, 201

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353

REASONS FOR DECISION

28 January 1999 Deputy President BJ McMahon

1. This is an application to review a decision made under section 200 of the Migration Act 1958 , to deport the applicant on grounds appearing in section 201.

2. The applicant was born in Western Samoa on 1 March 1958. He later moved to New Zealand where he became (and remains) a citizen of that country. He visited Australia briefly between 2 and 12 October 1988, returning to New Zealand to resume a relationship he then had with a woman. Both in Western Samoa and in New Zealand he was convicted for minor offences, judging by the levels of the fines. However, they did include convictions for wilful damage and for common assault.

3. He settled in this country on 9 June 1990 and has not left it since that date. Some 18 months later, on 4 December 1991, he was involved in an incident which led to his first major conviction in Australia. Believing that Mr Jones had indecently interfered with the daughter of his then de facto's sister, he went to see Mr Jones in circumstances described by Judge Mitchelmore in these words:

"The events occurred [on] 4 December 1991. The facts may be shortly stated.

It was about 9pm on 4 December 1991, the prisoner and co-offender went to a unit at Bankstown. They spoke to the victim. His name is Paul Gregory Jones. The prisoner said to the victim, "I am going to kill you." The prisoner produced a large bladed machete. The prisoner slashed the victim on the left arm causing a severe wound. A struggle ensued, the victim escaped. He escaped by running to the balcony and climbing to the balcony below.

The alarm was sounded. The police attended. The prisoner was located. The following day he was interviewed by way of electronic recording equipment. The victim received 30 stitches to his upper arm.

The relevant statement of Paul Jones says as follows in paragraph seven:

"Just after Jodie [the prisoner's then defacto partner] left the islander turned his back on me and when he turned around again he had a machete in his hands. He said, "we're going to kill you." I said, "What for?" He says, "What's been going on around here?" I said, "I've been watching TV and waiting for Michelle to come home." He said something else then he grabbed me by the shirt and tore it off my back. I fell to the floor and I don't know whether he chopped me while I was standing or as I hit the ground, but he chopped me on the left arm with the machete. I realised he meant business and I saw the extent of my wound. I was terrified of the machete so I grabbed the bean bag on the floor and held it up to protect myself. He kept trying to chop me again with the machete. I wasn't able to get away from him because the Australian guy was standing in the doorway. I saw the balcony door open, I threw the bag at him, ran outside. I jumpe! d over the balcony and somehow swung onto the balcony on the unit second floor below. I was terrified of the machete and just had to get away from it."

There is a statement from a neighbour. Her name is Leanne Birch. She appears to have been in a flat nearby on 4 December at 9.15 when these events occurred. She heard screaming for about three or four minutes. She went outside, she made certain investigations. She noticed:

"The Maori bloke was holding a large knife in his right hand. The knife was about 30 centimetres long and had a blade about four centimetres. The blade was dark, it wasn't shiny, it had blood on it. It had a wood handle.

The following conversation then took place, according to paragraph eight of Leanne Birch's statement.

"When the three of them were running towards the car I said, "Is Paul all right?" Jodie said, "He deserved what he got." As I was saying this the bloke with the knife came at me with the knife. He raised the knife, pointed it at me and said, "Fuck off." I told my daughter to take off and I ran up the stairs to Paul's unit.

Those then shortly are the facts of the matter."

4. As appears from this account he also threatened a witness with his knife. He was convicted of the offence of malicious wounding and was initially sentenced to a period of 15 months imprisonment with an additional period of 5 months. On appeal, this was reduced to a period of 9 months with an additional period of 3 months. Section 5 of the Sentencing Act 1989 (NSW) provides that for the purposes of any law, the term of the sentence of the court for an offence is the sum of the first term and the additional term during which a person may be released on parole. Accordingly, this conviction qualified the applicant for deportation under section 201 of the Migration Act 1958 .

5. The circumstances were investigated and interviews were carried out. It was decided, however, that a deportation order would not be made on that occasion. A formal warning, however, was issued to the applicant. He was warned that any further conviction would lead to the question of his deportation being reconsidered by the Minister or his delegate. He was also warned that disregard of that warning would weigh heavily against him if the Minister or his delegate reconsidered his case.

6. He was released on parole on 2 July 1993 and resumed co-habitation with his partner, Jodie Haffenden. From their union, a son Ricky had been born on 21 September 1992. A daughter, Vessie, was to be born later on 11 April 1994.

7. Relations with Ms Haffenden deteriorated and were accompanied by such violence that she was obliged to apply for, and obtain, a domestic violence order. This was issued at Campbelltown Local Court on 24 September 1993. The applicant was to be convicted in 1994 and 1995 for four subsequent breaches of that order. In addition to these convictions, he was also convicted on 15 August 1994 for assaulting Ms Haffenden. She had returned home from bingo and in the course of an argument he punched her. He was again sentenced to prison, this time for a term of three months with an additional period of three months. He was released on 11 November 1994.

8. A second assault was committed against Ms Haffenden on 28 April 1995. According to an interview with Ms Haffenden on 13 September 1996, he had woken her up at 3am wanting sex. He had been drinking and pulled her hair out. She also suffered a black eye and bruising to the side of her face as he pursued her in her efforts to call for police assistance. The circumstances of the assault were later described by Judge Nield in these words:

"Just five months later, on 28 April 1995 he assaulted Ms Haffenden, thereby breaching the domestic violence order.

The assault followed an argument and her leaving her home to go to a nearby telephone booth to ring for assistance from the police. There he pulled her hair and struck her face against some part of the booth. He was arrested following this incident and he was in custody, as I will say in a moment, for a period of time."

9. As a result of this assault, he was convicted of assault and was sentenced to imprisonment for a term of 6 months, together with an additional period of 6 months. This was confirmed, on appeal, by Judge Nield on 3 April 1996. His Honour observed at the time:

"One thing is beyond doubt: this man, when affected by alcohol, assaulted a woman and by doing so breached the domestic violence order. Those offences are serious. I must say that I would have imposed upon the appellant sentences considerably in excess of those imposed by the magistrate. However, the Crown has not appealed against the inadequacy of the sentences and, therefore, I do not propose to increase them. But I cannot see any reason whatsoever to reduce them.

Any many who assaults a woman should go to gaol. Any man who does so twice must go to gaol. Any man who breaches a domestic violence order for the fourth time cannot expect not to go to gaol. The offences that he has committed both carry a sentence of imprisonment for two years and I would have thought that a magistrate would have thought that for the fourth breach of a domestic violence order a penalty approaching the maximum would be appropriate. However, that is not the view taken by the magistrate who dealt with the appellant, and so be it."

10. This sentence of imprisonment for a period totalling 12 months again qualified the applicant to be considered for deportation. Again, interested parties were interviewed, including Mr Hui's brother and Ms Haffenden, and a submission was made for the consideration of the Minister's delegate. For the second time it was decided not to deport the applicant but to issue a warning.

11. The terms of that warning, omitting formal parts, were as follows:

"This letter is to advise you that a decision has been reached in respect of your liability to deportation from Australia pursuant to section 200 of the Migration Act 1958.

That liability arose from your conviction before Bankstown Local Court on 22 June 1992 on one count of Malicious Wounding and sentence to a minimum term of 15 months imprisonment, with an additional term of five months.

Your liability to deportation was reviewed in the light of your further conviction before Campbelltown Local Court on 9 May 1995 in respect of i) Assault, and ii) Breach Apprehended Domestic Violence Order and sentence, on appeal, to a minimum cumulative fixed term of seven months and thirteen days.

On 25 October 1996 the delegate of the Minister for Immigration and Multicultural Affairs decided not to order your deportation from Australia on the basis of these further convictions. The delegate directed that you should be administered a warning as to the consequences of any further re-offending.

The delegate stated that your repeated offences including offences against your family were of great concern. He indicated that you should be left in no doubt as to the consequences of again coming to the notice of the Department as a result of any further criminal conviction.

You are warned that should you again come to adverse notice of the Department through criminal activity, the fact that you ignored this warning will weigh heavily against you, and the question of your deportation will be seriously reconsidered.

You should be aware that, as long as you remain a permanent resident of Australia, any further criminal conviction in Australia you may incur will lead to the re-assessment of your liability to deportation pursuant to section 200 of the Migration Act.

You will only pass beyond the scope of section 200 of the Act by becoming an Australian citizen. I suggest that you give serious consideration to applying for Australian citizenship as soon as you are eligible. In this respect, I invite you to read the enclosed leaflet, Australian Citizenship - No. 3 'Citizenship by Grant' (Naturalisation), particularly the section headed Good Character."

12. By this time, he had left Ms Haffenden. There had been court proceedings concerning access to the children. According to Mr Hui, agreement was reached that he was to have this access once per fortnight. Pursuant to this he would see the children at the house of a friend in Campbelltown. Although the nature of access was not fully documented and no order or agreement was produced in evidence, Mr Hui said that because Ms Haffenden had suspicions that he would take the children away, she sought to have supervised access. It was agreed, according to Mr Hui, that his future contact with his children should be in her presence. By this time she had moved to her mother's house at Budgewoi, on the Cental Coast of New South Wales. Supervised access was arranged at the shopping centre in Wyong, a nearby town. Mr Hui would see his children here and watch them play in the shopping centre playground.

13. After his sentence was confirmed by Judge Nield on 3 April 1996 he returned to prison. He said in evidence he used to ring the children once per week from prison and occasionally would talk to Ms Haffenden about when he could see the children. He was released on 15 November 1996.

14. There are a number of minor convictions in Mr Hui's record for which no explanation was offered. One of them occurred after his release. On 9 October 1997 he was sentenced to a fine of $500 for maliciously destroying or damaging property. He had, by then, put himself into rehabilitation at Concord, where he stayed for some three months. He had hoped thereby to treat his alcohol consumption habit. This course of treatment does not appear to have had outstanding success.

15. By February 1997 he had acquired Housing Commission accommodation at Riverwood. He no longer saw the children. In fact, he has not seen them since that date. Ms Haffenden left her mother's home at Budgewoi but moved into another house in the same village. The applicant would send Christmas cards and money for Christmas presents, but otherwise had no contact with Ms Haffenden or his children from that time forward. He has had only intermittent and slight employment and contributes nothing to the financial support of either Ms Haffenden or the children.

16. On 26 September 1997, an incident occurred in the building at Riverwood. He and a neighbour had quarrelled with a man called Peter, who occupied the flat next door. On the day in question, there was an altercation between Mr Hui and his neighbour on the one hand, and Peter on the other hand, when both set upon Peter and seriously assaulted him. In evidence before me, Mr Hui said that they had tried to hang Peter with a sheet. They wanted to scare him. Mr Hui agreed that he had been drinking a considerable amount prior to this incident. Although he subsequently denied to immigration officers any knowledge the circumstances of this incident, he agreed at the hearing before me to give these details. He was charged and convicted of affray and of assault occasioning actual bodily harm. He was sentenced to a term of 12 months imprisonment with an additional 12 months on each charge. He again appealed and was successful in having ! his sentence varied to a fixed term of 12 months. This was the third offence which qualified the applicant for deportation. Following a consideration of the circumstances and a further interview with Mr Hui, the deportation order was made on 28 September 1998. It is this order which is now the subject of the present review.

17. Pursuant to Ministerial policy, I am to consider the nature of the applicant's crime and his previous considerations for deportation. Although the sentences in each case were for the minimum period that would base jurisdiction to make a deportation order, nevertheless, the offences have to be regarded as serious offences in each case. The first conviction involved an attack with a long knife or machete. As Judge Mitchelmore pointed out in his sentence, the use of knives is "viewed seriously by the courts". The use of his knife to threaten a witness, as His Honour said, aggravated the offence. A further aggravating feature mentioned by the Judge was that the assault took place in the victim's own home. The applicant, by all accounts, went to the victim's home with the intent of doing him harm.

18. The second offence was one of a series of acts of violence against his partner. It involved apparent disregard of domestic violence orders and of previous violent conduct. In the interview Ms Haffenden gave on 13 September 1996, she indicated to the departmental officer that if Mr Hui were to be deported, she would feel a lot safer.

19. The third incident was serious enough to attract a charge going well beyond common assault, particularly as it was done in conjunction with another assailant. All three serious offences were accompanied by excessive consumption of alcohol. Accordingly, all the offences must be regarded seriously and may be regarded together as evidence of a pattern of behaviour. They point to a very high risk of recidivism, which is another subject I am bound to consider.

20. Mr Hui has a long record of persistent offending, including a number of serious violent offences. He has been twice warned about the possibility of deportation and has apparently disregarded them.

21. After the second warning, he committed further offences rendering him liable to deportation again. He paid no heed to a domestic violence order on at least four occasions. This record of disregard for the law and reckless disregard of warnings indicates, in my view, a high risk that he will re-offend. Mr Hui would have me believe that his attitude to life and to the law has changed during his last term of imprisonment. Whilst acknowledging that "I was drinking a lot then", he now alleges that he is a sober person. He attends church every Sunday, a habit he did not have before this prison sentence. He said that he had changed his way of thinking. If released, he said that he would continue counselling and would talk to his brother from time to time about his problems. I am unable to be satisfied from these assurances that his behaviour in the future would be markedly different from that in the! past. He has previously expressed regret and he has previously attempted to overcome his alcohol addiction. The longstanding pattern of behaviour, however, indicates a deep-rooted tendency to violence. Even in prison, where this reformation is said to have taken place, his tendencies have been noted. Thus, in a parole report written on 14 July 1998, an officer remarked:

"Reports to date are not positive. In fact they give every indication that he has problems which are clearly manifest in aggression and violence. All factors indicate an inability to conform with 'norms' ".

22. Alcohol has been a factor in his criminal career. Although he has made some attempt to address his problem, these attempts have not been successful. The three months course at Concord in 1996 appears to have achieved little. While in prison on the last sentence he has undertaken a drug and alcohol course and a course dealing with anger management. He now believes he has changed his way of thinking and if released, he will continue counselling. His brother says that he will supervise him and ensure that he "cleans himself up". Unfortunately, courses in prison are not always reliable guides to likely behaviour once the applicant leaves prison and is subject to the temptations of society. Nor can one be confident that the influence of Mr Hui's brother will prevail. Although both say they have a close relationship, their degree of contact hardly bears this out. According to Mr Vaise Hui, he ! saw the applicant only on those occasions whenever Mr Hui wanted anything or sought his brother's advice. For example, in January 1998 he came to see his brother at work and said that he was looking for a job. Their conversation lasted some 20 or 30 minutes. Mr Vaise Hui said that this was the usual length of the applicant's visits.

23. Mr Vaise Hui was not aware that his brother was sentenced to 12 months imprisonment in March 1998 and that the sentence was confirmed in June 1998. He was surprised to hear from an immigration officer in August 1998 that his brother was, in fact, in prison. The first time he spoke to his brother during the whole of 1998 was on Christmas Eve, when the applicant telephoned him to see how he and his family were. Even then, the applicant did not tell his brother that a deportation order had been made against him. In fact, he had not told his brother of the two previous warnings and of the real possibility of his deportation.

24. Although the two brothers may think that their relationship is close, I do not see that I can place any reliance upon the influence of Vaise Hui on the applicant which might deflect him from the path which has been only too evident in the past. Certainly the influence of his brother has not kept the applicant out of trouble during the time he has been in this country. In her interview in September 1996, Ms Haffenden said that she had met Mr Vaise Hui and wished the applicant was like him. Mr Vaise Hui has five children and is in regular employment. His example of steadiness in society has apparently had little effect on the erratic, violent and criminal career of the applicant since he came to Australia.

25. His relationship with Ms Haffenden ended some years ago. Although he knows that she lives at Budgewoi, he said that he did not wish to see her as it would bring up old and painful memories. She would play no part in his rehabilitation if he were to stay in Australia. There was no evidence of any other friend or organisation that might assist in this task.

26. There is no satisfactory evidence concerning plans for his future employment. According the applicant he said "I will go from factory to factory to look for a job". His brother said simply that he would do everything he could to help the applicant. No firm prospects of employment and only the vaguest plans for the future give little grounds to hope the applicant will not re-offend if not deported.

27. His contribution to the Australian community has been relatively small. Although he has had some full-time employment, he has also been in receipt of social security benefits. For the eight years he has been in this country, he has spent a considerable time in prison. He has some work skills. Whether he puts them to use depends upon whether he can live successfully in the community. After two previous warnings which have been disregarded, it is incumbent on this Tribunal to be significantly more than comfortable about the future before setting aside the order in question. The Tribunal should in fact be particularly confident that the applicant's pattern of behaviour has changed, that his outlook has changed, and that he will not re-offend in the future. I do not have this confidence.

28. The relationship with his brother does not appear to correspond with the description which both of them have given to it. Although Mr Vaise Hui said he would be upset if the applicant were deported, there does not appear to be any particular hardship that he would suffer from this event. He has another brother in Samoa, to whom he writes occasionally, but who does not return the correspondence. The mere fact that he is separated from siblings in other countries is not sufficient to constitute hardship.

29. Clearly, Ms Haffenden would not be caused any hardship by the applicant's deportation. The applicant himself would not suffer any unusual hardship, as that term is used in the Ministerial guidelines. As has been noted, he has some work skills. Mr Vaise Hui gave evidence that the two brothers have one uncle and two aunts who live in Auckland. It is true that Vaise is better known to them than Lokeni. The existence of relatives, however, means that he will not be without family contacts if he returns to the country of his citizenship.

30. There is really only one positive factor militating against the execution of the deportation order and it is the matter upon which the applicant principally relies. It is clear from Teoh's case ((1995) [1995] HCA 20; 128 ALR 353) that in all actions concerning children, the best interests of the child are to be a primary consideration. Mr Hui obviously had regular contact with his children when they were born in 1992 and 1994 respectively. In 1995, during the separation, that contact diminished. In 1996, while he was in prison, he would telephone the children and would send Christmas cards and money for gifts at Christmas. Since February 1997, however, he has not seen either Ms Haffenden or the children. It is true that for some of that time he has been in prison. Nevertheless, for a period of six months prior to the commencement of his latest sentence, he did not see the children. The only reason he gave f! or this was that Ms Haffenden was unable to afford the expense of travelling the short distance from Budgewoi to Wyong. I consider that the applicant was less than frank in putting this gloss on the break in contact.

31. It has to be said that Mr Hui has had little or no contact with his children in the past two years. Ricky is at an age when he now goes to school. Mr Hui does not know which school he attends. He does not even know the family's address. As long ago as September 1996, Ms Haffenden indicated to a departmental officer that she believed the children were quite happy and that they would not miss the applicant in the event of his deportation.

32. This is consistent with the fact that she was not called to give evidence in these proceedings. Mr Hui's counsel said that he took responsibility for not calling Ms Haffenden. However, in the light of Mr Hui's evidence that he did not wish to see his former partner again, and that she would revive unhappy memories, it is unlikely that he would have instructed his counsel to make arrangements for her to attend. It was suggested that because this matter was brought on relatively early there had been no opportunity to arrange for Ms Haffenden to be called. I do not accept this. I indicated in the course of the hearing that if the applicant's counsel felt that the presentation of his case was in any way impaired, then an adjournment could be requested. Counsel for the respondent also indicated that it would consent to an adjournment for this purpose. The offer was not accepted. I consider that I am entitled to infer that if Ms ! Haffenden had given evidence it would not have been to the benefit of the applicant's case.

33. Accordingly, there is no real evidence before me of the attitude of the children, of their present welfare, or indeed of their "best interests". Counsel for the applicant submitted that it was axiomatic that separation of a father from his children was not in the best interests of the child. I do not accept that this is a rule of universal application. Although clearly Mr Hui believes that his presence would be beneficial to his children, his beliefs have not been matched by deeds. To imagine what relationship the applicant would have with his children, or they with him, were he to be released, is extremely speculative. Mr Hui is driven by a desire for his children. This desire may not necessarily reflect the best interests of those children. When he lived with their mother, he repeatedly and seriously assaulted her. What effect this may have had on the attitude of the children towards their ! father has been left unexplored. It may well be that the present separation which has existed for the past two years might best serve the interests of the children if it were extended permanently. There is no evidence that the welfare of the children is anything other than satisfactory in their present situation. It would be quite arbitrary to decide that their best interests would be served by altering these arrangements. One may well ask, from a practical point of view, how these arrangements could be altered. Mr Hui suggested that the children might come to live with him at his brother's house. In the absence of any other evidence, this would be quite a fanciful suggestion. On the basis of this dream, I would not be prepared to hold that the best interests of the children would be served by such an arrangement.

34. In any event, the best interests of the children must be taken into account along with other primary considerations. Weight has to be given to competing considerations, in determining whether the deportation order should be executed. The possible best interests of the two children are, in my view, the only factor from which the applicant can derive comfort. All other factors set out in the Ministerial deportation policy must lead to a decision adverse to the applicant. On the whole, therefore, and considering the purpose of deportation as set out in that policy, namely to protect the community from the possibility of further criminal behaviour or to expel from Australia those non-citizens who have seriously abused the privilege of residence accorded to them by the Australian community, there can, in my view, be only one result of this review. The decision under review is affirmed.

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

Deputy President BJ McMahon

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

Associate

Date of Hearing 21 January 1999

Date of Decision 28 January 1999

Counsel for the Applicant Mr Cameron Jackson

Solicitor for the Respondent Department of Immigration and Multicultural Affairs