Ishibashi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal (the AAT) constituted by Deputy President Breen, made on 31 October 2000, affirming a previous decision to deport the appellant under s 200 of the Migration Act 1958 (Cth) (the Act). The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), and is limited to an appeal on a question of law. 2 The appellant was convicted on his own plea on 2 March 1998 of Grievous Bodily Harm with Intent to Disfigure, after an incident which occurred on 16 July 1997. The nature of the offence and its seriousness was described by the Tribunal: "The applicant's crime is one which involves brutal violence and would be viewed as abhorrent by the Australia [sic] community. Ms Gianni gave evidence as to the following details of the event. The applicant had been acting strangely for 2 days. On the night of the incident he was very agitated and left their apartment to go and see his friend, Mr Gorlich. When he returned he was angry and accused Ms Gianni of having an affair. He yelled at her and approached her with raised hands and she pushed him away. He pulled the phone out of the wall and pushed the fire alarm so that the lift could not be used from that unit. He then ran out of the unit via the fire escape. Ms Gianni rang her friend on her mobile phone and went into the kitchen to hide the knives and then moved a chest of drawers in front of the fire escape. The applicant returned via the lift and accused Ms Gianni of being on the phone to her boyfriend. He went into the kitchen and then returned to the lounge room. He ran at Ms Gianni and hit her repeatedly in the face. She fell to the floor and he knelt on top of her chest and started trying to strangle her. Somehow she managed to push him off and tried to move away. He came at her again and started biting her face. She put her hands up to stop him and he started biting her hands. He first bit at the right hand, then he grabbed her left hand and forced her little finger into his mouth. He continued to bite at her finger and pull at it while it was still between his teeth. When he finally let go, her little finger was only attached by a bit of skin. The applicant laughed at her and told her that 'no-one can help you now'. At this stage the body corporate manager and another resident came into the unit in response to Ms Gianni's screams. They had called the Police and took Ms Gianni downstairs. The applicant also got into the lift with them and when the Police arrived he had to be forcibly restrained. Ms Gianni's little finger was amputated 6 days later. The Tribunal accepts Ms Gianni's evidence as a fairly accurate account of the event, given that people often find it hard to precisely recall very stressful situations. Her evidence is consistent with the facts of the offence as accepted by the Court at both first instance and on appeal." 3 The appellant was sentenced to six years imprisonment, which was reduced on appeal to four years. 4 Section 200 of the Act is headed "Deportation of certain non-citizens" and provides that "[t]he Minister may order the deportation of a non-citizen to whom this Division applies". The relevant portion of the Division that applies to the appellant in this instance is s 201 which is headed "Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes" and provides inter alia: "Where: (a) a person who is a non-citizen has …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; … and (c) the offence is an offence for which the person was sentenced… for a period of not less than one year; section 200 applies to the person." 5 It is not disputed by the appellant that he falls within the scope of ss 200 and 201. 6 The Notice of Appeal relies upon three alleged errors of law, namely whether: "(a) … the Tribunal erred in law by making a decision on the existence of a particular fact that did not exist; (b) … the Tribunal erred in law in allowing its discretion to be fettered by government policy; (c) … the Tribunal erred in law by incorrectly interpreting the applicable law to the facts." 7 The Grounds of Appeal are detailed in the Notice of Appeal and are that: "(a) There was no medical evidence to support the Tribunal's finding that the Applicant did not suffer from psychosis at the time of the commission of the offence. (b) The Tribunal's discretion miscarried by virtue of its application of the Minister's Direction 9 - General Direction - Criminal Deportation." 8 This second ground is particularised in the Further and Better Particulars of Second Ground of Appeal to detail the manner in which the discretion is said to have miscarried: "(a) contrary to the finding that (i) the applicant's risk of recidivism was 'quite low' and (ii) the general deterrent effect of the applicant's deportation would be 'marginal'; (b) without proper consideration of the nature of the offence; (c) having misinformed itself as to the rights of the Australian community." 9 It is common ground that in making the decision as to whether to deport the appellant, the Minister (and accordingly the AAT) were obliged to consider "General Direction - Criminal Deportation - No 9" made under s 499 with reference to the operation of s 200. That Direction details the "primary considerations" in making a decision whether or not to deport a person. The primary consideration relevant to the present case is: "The expectations of the Australian community … There are two aspects to community expectations: (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." 10 In determining what is necessary for the protection of the community the Direction states that relevant factors are: "(a) the seriousness 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". 11 Amongst the examples of what are considered to be serious offences is "… (l) any other crimes involving violence or the threat of violence; - Such crimes are of special concern to the welfare and safety of the Australian community" 12 It is not in dispute that the crime for which the appellant was convicted was serious. The AAT accepted that the appellant's risk of recidivism was quite low, and that the deterrent effect of deportation would be marginal. 13 It is therefore the second aspect of the community expectations that is centrally in issue in this case: "the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia". When reaching a decision to deport, "a decision maker should have regard to" this primary consideration. 14 The AAT found, and it was not contested before me, that the crime which brought the appellant within the scope of s 200 of the Act was one that was abhorrent to the Australian community. It was submitted that the circumstances surrounding the offence should be considered, and that this could, and indeed should, be done without going behind the conviction. Mr J S Douglas QC, for the appellant referred to A v MIMA [1999] FCA 227 and Betkoshabeh v MIMA (1999) 92 FCR 504 for the proposition that the seriousness of a crime must be considered in the light of the circumstances surrounding it. It was the appellant's main submission that the AAT failed to consider properly the nature of the offence in light of the medical circumstances of the Applicant. 15 I accept that in assessing the seriousness of an offence, it is necessary for a decision maker to have regard to surrounding circumstances. However, in my judgment the AAT did not fall into error in this case in failing to do so. It was submitted for the appellant that the Tribunal erred in finding the appellant was not suffering from psychosis at the time of the offence. It was quite properly conceded by counsel for the appellant that for there to be an error of law, the conclusion reached by the AAT must not have been reasonably open to it on the evidence. It was submitted that there was no reasonable conclusion that could be drawn other than that he was affected by psychosis. 16 Amongst the evidence before the AAT was a report of Mr Peter J. Stoker, Clinical Psychologist, dated 21 July 1997 - five days after Mr Ishibashi committed the offence. This report was obtained by Mr Ishibashi for the purpose of the criminal proceedings. In that report Mr Stoker stated: "He presented to me as a very stable and rational man. Certainly there were no signs of psychotic thinking … This man is not suffering from any clinically significant psychological disorder. He certainly is not delusional, nor does he have any other evident psychotic symptomatology." 17 Mr Stoker's opinion did not change when he gave his oral evidence at the hearing before the AAT. At that time, further reports on Mr Ishibashi made by medical practitioners who were of the opinion that Mr Ishibashi was suffering a form of psychosis at the time of his offence were put to Mr Stoker. The effect of Mr Stoker's evidence, after these reports had been put to him, was that none of the reports altered his opinion that Mr Ishibashi was not suffering from psychotic symptomatology. Mr Stoker did not change his view under cross-examination. 18 Further evidence before the AAT included a report by Psychiatrist Dr Joseph Ziukelis dated 17 January 1998. In that report Dr Ziukelis stated, with reference to Mr Ishibashi's mental condition: "There was some evidence of mild anxiety but no features of sustained depressed mood. Psychotic phenomena were absent." 19 Dr Apel also examined Mr Ishibashi on 19 October 1999. In his report, Dr Apel stated of Mr Ishibashi that at the time of the examination: "There was no evidence of psychosis …" His report concluded that: "1. Mr Ishibashi is a man currently suffering no psychiatric illness. 2. He relates an account consistent with panic attacks arising at the time of the offence upon his wife." 20 While there was evidence before the AAT that indicated the existence of the psychosis at the time of the attack, there was also the evidence set out above. It cannot be said that the conclusion reached by the AAT was not reasonably open to it on the evidence. The evidence supported the finding of the AAT that: "It is the Tribunal's finding that while the applicant might have been in a heightened state of agitation and anxiety at the time of the offence, he was nevertheless aware of what he was doing. His actions on the night in question show a systematic terrorisation and isolation of his wife before he attacked her. Just because a person is angry to the point of being irrational does not mean that they are insane, nor does it reduce the seriousness with which the offence is viewed." 21 The AAT had before it all the medical evidence, and did consider it. There was evidence indicating the existence of psychosis, and evidence indicating the absence of psychosis at the time of the offence. After a consideration of the written material, and the oral evidence of the various experts who gave evidence, the AAT determined that the appellant was not suffering psychosis at the time of his attack on his then wife. It was open for the AAT to make such a finding. Accordingly, as there was no error of law in making that finding, the AAT did not fail to consider the surrounding circumstances of the offence committed by the appellant.