Minister v Gungor [1982] FCA 99; (1982) 42 ALR 209

That the deportation under review be remitted for reconsideration pursuant to s.66E(3) of the Migration Act, 1958 (Cth).

The Tribunal recommends that if the Minister still wishes to affirm his order, he should do so only after his officers have made satisfactory arrangements to secure a place to which the applicant may be deported without danger of unjust punishment.

The Tribunal also recommends that if the Minister decides to allow the applicant to remain in Australia, he should first be satisfied that the applicant has submitted to appropriate psychiatric treatment.

Francisco Soria Vazquez ("the applicant") is somewhat of a nuisance. He came to Australia on 2 August 1980 from a transit camp in Pennsylvania, United States of America (Exhibit D), via Peru (Transcript pp 29/30), as a political refugee from the Marxist regime in Cuba (see T2 and applicant's affidavit, Exhibit F, paragraph 2). He is an Afro-Cuban, who is qualified as a welder (T18). Whether in spite of, or perhaps because of, his jet black features, he has proved to be sexually frenetically attractive. In the space of nearly nine years since his arrival in Australia, he has bedded one mistress, of Spanish origin, for about two and a half years (Transcript p 34) and had another mistress of Italian origin for approximately one year and one month (Transcript p 36). I am not certain if the Italian lady preceded or held a contemporaneous position with the third light of love, but the third lady married him on 20 January 1985 (T10). This lady has since divorced the applicant (Transcript p 58), probably on 30 May 1988 (T20). According to one document (T3), the applicant was born on 22 November 1949, although in an interview he said he was born on 22 November 1948 (T18).

2. The applicant's former wife was born in England on 25 May 1931 and came to Australia on 31 May 1950. The applicant was her third third husband (T21). Her first husband from whom she was divorced, was British and rather hard to get on with, she said in evidence (Transcript p 58). Her second husband was an Asian who divorced her and left with a Chinese woman (Transcript 58). She described him as a very good man (Transcript p 58). The applicant's former wife has a daughter and son by her first marriage, and a son and daughter by the second marriage (Transcript p 58).

3. At Transcript p 59 she gave the following evidence:

"The D.PRESIDENT: When you married him, did you know he

had been living with two other women prior to you? --- I

knew he had lived with a Spanish lady and that he had

beaten her unmercifully and that she had ---

You knew that when you married him, did you? --- I was

scared of ---

No, you knew that when you married him, is that right?

--- Yes."

Not only did the marriage begin in such inauspicious circumstances, but the applicant had a goodly police record, set out in a document, part of T15, which is Annexure "A" to these reasons.

4. One of the persons assaulted by the applicant appears to have been a man who took umbrage at the applicant's association with his first mistress (Transcript p 30). That mistress, at one stage or another, was a married woman with a husband and four children (Transcript p 32). Another person he assaulted on 26 August 1984 was a male (Transcript p 35), and another was the 13 year old son of the second mistress (Transcript p 37). The other assaults and convictions appear to have been on one or other of the mistresses, and upon his wife and mother-in-law (a woman of 81 years of age). There is another conviction, not listed by the police record, for breach of a term of parole, because the applicant telephoned his former wife in August 1988, apparently while in gaol (Transcript p 43).

5. It is to be noted, concerning the applicant's convictions and offences, that all were dealt with in summary jurisdiction by magistrates at Petty Sessions (now called the Local Court). It was not until 14 August 1984 that he received a prison sentence of three months, and even then it was dated back effectively to two and one half months prior to the date of conviction. However, on 9 November 1984 he was convicted of what is described in the police record as indictable assault, and also of assault occasioning actual bodily harm. The first of those convictions was in respect of an assault upon his wife, the second an assault upon his mother-in-law (the lady aged 81 years of age).

6. In his remarks on sentencing the learned magistrate said:

"As I indicated earlier I have found this a most

difficult matter so far as sentence is concerned. I

will deal first of all with the aspect of S.428X of the

Crimes Act. I would have thought that by any stretch of

the imagination a person who is said to be suffering

from paranoid schizophrenia would be suffering from a

mental illness, certainly in medical phraseology, and

the question of course is whether the defendant is

suffering from a mental illness in legal phraseology,

and in this regard S.428X compels me to have regard to

the definition of mentally ill under S.5 of the Mental

Health Act (1983). That Section of the Act, which is

not yet proclaimed, requires that I have regard to the

fact as mentioned in s.s.(a) and (b) of s.s.1. That is

that 'a person must require care treatment or control

for the person's own protection' by reason of the

various factors therein set out, and secondly for the

protection of others by reason of various other factors

one of which is that owing to the person's mental

illness that person has recently inflicted, or attempted

to inflict, the word recently, made a reasonably

credible threat to inflict serious bodily harm upon

another person. Which certainly appears to fit the case

here. That is the construction urged upon me by

Mr. Jeffreys, that both (a) and (b) must appear before I

can consider the use of S.428X, and certainly that would

appear to be the normal rule of statutory construction.

The Section does not say '(a) or (b)', as to the various

sub sub-sections in their internal requirements, and as

I also indicated earlier I think it is appalling that

where there is a question of the liberty of the subject,

the well-being of the individual and the factor or

concern for the protection of the victims of the

defendant's deeds, in this instance, that one should

have to confront such difficulties of interpretation.

Am I for example entitled to apply the provisions of an

Act, the relevant portion of which has not yet been

proclaimed, and why are (a) and (b) on the face of it

not disjunctive where as in the facts of this case I

have a man before me on the evidence of the medical

reports who is a paranoid schizophrenic who is a

potential danger to others. Under the circumstances,

because S.5 of the Mental Health Act of 1983 is not yet

proclaimed, and because on normal principles of

statutory construction I need to be satisfied of (a) and

(b), I do not feel that I am entitled to consider 428X,

or its use, in this instance, even though it is clearly

the type of case the legislature had in mind when

passing the Section. I am therefore thrown back in this

instance in dealing with the case according to law, even

though that may effectively at some stage in the future

have the result in the releasing a man who the evidence

before me suggests is suffering from paranoid

schizophrenia back into the community without the proper

care and attention which he would receive were I to

apply the provisions of S.428X. Dealing with the matter

then according to law on the face of it is a serious

assault, according to the evidence of Mrs. Vasquez,

there are two assaults of course, hers is the indictable

assault under S.61 of the Crimes Act, and I say here of

course that summary jurisdiction was offered and

accepted in both these matters, after, she says that the

defendant hit her with the palm of his right hand to the

left side of her face, and then with the back of his

hand on the right side of the face, this being when she

was asleep in bed, and was awoken at about 6.45a.m. on

29 July. She said 'after he hit me he pulled all the

bedclothes off and threw them on the floor and then a

short time later', when she was on the side of the bed,

'he hit me on the left side of the face and ear with his

open right hand' and hit her once and the force of the

blow knocked her back against a little cupboard next to

the bed. Then, according to Mrs. Vasquez, he turned and

faced her mother, and this then forms the basis of the

'Assault Occasioning Actual Bodily Harm', charge, and

took hold of her right, her wrist forearm area with his

left hand and grabbed the top part of her right breast

with his right hand and screwed the collar around,

lifted her bodily off the floor full stretch with his

arm straight above his head and then threw her down on

the floor and she landed on her right side, 'and then

when he spun around and grabbed my mother he made

certain comments to her', and then again turned to the

mother as she was almost up on her feet when he punched

her with a closed fist, the right fist, 'on Mum's left

eye', and she then fell back on the floor. As a result

of those, that assault, in each case Mrs. Vasquez

sustained a skin graze to the left leg where she said

she was kicked by the defendant, she was observed by the

police officer at the time and in his opinion she was

suffering from shock was tense and pale. The upper left

inside of her mouth was badly bruised, there was

bruising to the left and right earlobes and the left leg

skin was scraped, the front above the shin area there

was bruising. The defendant's mother-in-law, Mrs

Bombarderi who was aged 81 at the time sustained an

injury to her eye the right eyeball was seen to be

bloodshot and redenned (sic) with bruising to the right

side of her face, and a layer of skin was missing from

her right wrist area exposing the flesh and a wound of

some 1 and a half inches to 2 inches diameter was

observed and she was also observed, in the opinion of

the Police Constable, to be suffering from a degree of

shock. As I indicated they are not as serious as some

of the injuries which come before these courts on

matters of this nature but they are serious, it was a

very serious assault on the facts before me, unprovoked,

I take into account what Mr. Jeffreys has said so far as

the defendant coming home the night before and finding

people in the house that would not of any extent excuse

the form of assault which occurred on the next morning,

and I would think that the injuries sustained by

Mrs Bobarderi would be particularly distressing to a

woman her age. Of course when I look at the defendant's

record to see what consideration I should give him he

has a lengthy history of violence offences going back to

1981, Assault and Malicious Injury when he was released

on recognizance, in 1982 Assault Female, he received a

deferred sentence. There is a matter of Assault Female

in November 1983, and then in 1984 Malicious Injury

matter. 14 August 1984 Assault Occasioning Actual

Bodily Harm, two counts of Assault, Malicious Injury and

Carrying Cutting Instrument. In August of 1985 S.61

Assault and Assault Female for which sentence was

deferred upon him entering into a recognizance, and it

is a fact that at the time of this incident that

recognizance was still current. There is a Malicious

Injury matter on 26 August 1985 and an Assault

Occasioning Actual Bodily Harm matter at Waverley on

13 March this year, only some four months or five months

before this particular incident for which he was fined

five hundred dollars. Certainly not an attractive

record. I have been asked to take into account the fact

that he suffers from diminished responsibility and I

have considered the medical reports in that regard,

again it poses me with a problem in not considering the

medical reports that I, for possible action I may take

under S.421X (does say 421X) and yet considering him

from the point of view of diminished responsibility, I

have done that, but in my view the facts and

circumstances which would bring this matter within the

comfort of the summary jurisdiction have been

sufficiently, have been sufficient to merit any

reflection in the appropriate sentence which I would

take into account having regard to that diminished

responsibility, which is of course a matter which

diminishes murder to something less than murder but I've

been asked to take into account by Mr. Jeffreys in this

instance on the question of mitigation of penalty. That

is also a factor which would influence me not to impose

cumulative sentences and in any event having regard to

the fact that they both occurred at the one time I do

not intend to impose acumulative sentence. Having

regard to the seriousness of the assault, the

defendant's record, and the other matters to which I

have alluded I will deal with the matter according to

law. On each matter that is matters 83 and 84 the

defendant is committed to prison for a period of two

years, I fix a non-probation period of 18 months and I

order the defendant's release upon the expiry of the

non-probation period upon conditions 2(a) to (g) of the

appropriate schedule to the Probation and Parole Act

Regulations both sentence and non-probation period may

commence on 29 July 1987, the date upon which he was

originally taken into custody, I recommend that the

defendant receive appropriate care and treatment for his

paranoid schizophrenia while in custody, and I direct

that a copy of my decision be transcribed and a copy be

forwarded to the Chief Magistrate and to the

Attorney-General with reference to the unsatisfactory

nature of sentencing alternatives under S.428X of the

Crimes Act. Now there are two summary matters, what

date are you seeking with those matters Sergeant?."

It is to be noticed that the magistrate considered he might have followed the course of not conviction by using s.428X of the Crimes Act, 1900 (NSW) introduced by the Crimes (Mental Disorder) Amendment Act No. 180 of 1983, if it had then been proclaimed and if difficulties of interpretation could be overcome. Section 428X(1) is as follows:

"(1) Where, in proceedings before a magistrate, it

appears to the magistrate that the defendant is a

mentally ill person within the meaning of the Mental

Health Act, 1983, the magistrate -

(a) may order that the defendant be taken to a

hospital as defined in section 4(1) of the

Mental Health Act, 1983, for assessment; or

(b) may discharge the defendant, unconditionally or

subject to conditions, into the care of a

responsible person.

(2) Where a defendant is dealt with in proceedings

before a magistrate in accordance with subsection (1),

the charge which gave rise to the proceedings shall, on

the expiration of the period of 6 months after the date

on which the defendant is so dealt with, be deemed to

have been dismissed unless, within that period, the

defendant is brought before a magistrate to be further

dealt with in relation to the charge.

(3) Where a defendant is brought before a magistrate to

be further dealt with in relation to a charge as

referred to in subsection (2), the magistrate shall, in

dealing with the charge, take account of any period

during which the defendant was in a hospital as a

consequence of an order made under subsection (1)(a).

7. In view of the medical evidence before him, as set out in his remarks, the magistrate took into account the defendant's diminished responsibility, and decided not to impose cumulative sentences, but concurrent sentences. The magistrate fixed a non parole period of 18 months and backdated the sentences to 29 July 1987. The applicant would by now be long since out of gaol were it not for the pending deportation order. It is to be noted that while the assault on his former wife is referred to as an indictable assault under s.61 of the Crimes Act, 1900 (NSW), the magistrate took into account in sentencing, that the facts and circumstances had brought the matter "within the comfort of the summary jurisdiction". This appears to have been an exercise of the power under s.476 of the Crimes Act. While this Tribunal is bound to accept the fact of conviction, it is entitled to consider the circumstances surrounding the conviction, and assess its gravity. Minister v Gungor [1982] FCA 99; (1982) 42 ALR 209, 230 per Sheppard J.

8. The deportation submission (T33) upon which the Minister made his decision to issue a deportation order, did not set out all the matters stated by the learned magistrate (see paragraph 4 thereof). It also set out in paragraph 7 the fears for herself and her family's safety, expressed by the applicant's former wife (paragraph 7), if he were not deported. In its assessment in Section C paragraph 13, the report says:

"NATURE OF THE CRIMES

Mr Vazquez was convicted and sentenced for crimes

of violence against the person which is considered

a serious offence under Criminal Deportation

Policy. He has a history of such offences since

arrival in Australia."

(i) Mr Vazquez' offences are serious and have

occurred regularly since arrival in Australia"

The matters which I have pointed to in the learned magistrate's extended statement of reasons diminish, in my opinion, the relative seriousness and gravity of the assaults, the basis of the Minister's Deportation Order of 14 November 1988 (T34), and do not appear to have been brought to the Minister's notice in the deportation submission although mentioned in appendices thereto. Nevertheless, I do not wish to be thought to treat the assaults as light matters. Indeed, the applicant was perhaps fortunatethat the elderly mother-in-law did not suffer more serious injuries.

9. However, it is disturbing to find that the magistrate rightly regarded the matter of sentence as a most difficult matter, and took into account diminished responsibility because of the applicant's mental state. It is also disturbing to find from psychiatric evidence that the applicant's mental disturbance may have existed when the Government first decided to accept him as an immigrant.

10. According to Dr Yvonne Skinner's report of 18 May 1989 (Exhibit B2), the applicant is suffering from paranoid schizophrenia. Dr Skinner, a consulting psychiatrist, records the applicant's belief in Black Magic and that his wife and other people had been plotting against him and using Black Magic to influence his actions and factors in his environment. Dr Skinner speaks of a paranoid delusional psychosis "which in view of his other symptoms and long standing nature of the beliefs, are part of a paranoid schizophrenic illness". Dr Skinner gave oral evidence before me, and impressed me by her cautious approach to diagnosis. Her second report concludes "His prognosis must be guarded in view of the long standing nature of his symptoms and reluctance to accept medication.". The psychiatric report prepared for presentation to the Local Court at Waverley, where the applicant was dealt with on 13 March 1987, may have been one of the medical reports mentioned by the magistrate when sentencing the applicant for the deportation offences. It is a report by Dr E. Fischer, a consultant psychiatrist to the N.S.W. Prison Medical Service and is dated 22 October 1987. It is Exhibit C2. Dr Fischer emphasises the applicant's belief in Black Magic and says:

"Mr Vazquez is undoubtedly suffering from a delusional

psychosis and indeed because of his delusional beliefs

he can be quite dangerous."

The psychiatric evidence casts a new light upon the circumstances surrounding the commission of the offences for which the applicant was convicted, and which caused the Minister to make a deportation order. A psychiatric report provided on behalf of the respondent dated 25 May 1989, Exhibit 1, proved to be almost valueless, as the psychiatrist admitted in evidence that he had never examined the applicant.

11. Whilst I am inclined to believe the divorced wife fears for her own safety and her daughter's if the applicant is not deported, I am not unmindful of her own strange behaviour in herself marrying for the third time a man she knew was violent. The Minister's advisers do not appear to have balanced her loud complaints against her own odd behaviour, or to have appreciated the mental disorder of the applicant. The applicant told me he has no intention of having anything further to do with her, but his psychiatric problems leave me uncertain of this statement's objective reality.

12. The applicant's affidavit, Exhibit F, annexes trade references referring to his competence as a welder.

13. In the reasons for decision furnished by the First Assistant Secretary (T2), paragraph 5, 6, 7 and 8 are as follows:

"5 I had regard to the policy with respect to the

exercise of the discretion pursuant to section 12 of the

Act announced on 4 May 1983.

6 I accepted advice from the Regional Director,

Northern Region that Mr Vazquez entered Australia as a

refugee and I had regard to the applicant's claims that

he may face lengthy imprisonment or death in Cuba for

his anti-government sentiments. I accepted advice from

the Department of Foreign Affairs and Trade that while

Cuban refugees returned to Cuba will probably be

imprisoned and may face some official harrassment there

is no indication that refugees returning to Cuba have in

the past four years been executed. I also accepted

advice that refugees may be refouled if they are

considered not to be deserving of international

protection or if the cessation clauses of the United

Nations Convention on the Status of Refugees apply.

7 I had regard to the fact that article 33 of the

United Nations Convention on the Status of Refugees

provides that a refugee who is convicted of a

particularly serious crime and who constitutes a danger

to the community is not covered by the general prohibition

contained in the Convention on the return of refugees.

I concluded, having regard to the seriousness of Mr Vazquez's

past criminal history and the existence of a high risk of

recidivism, that in the terms of the UN Convention

Mr Vazquez constitutes a danger to the Australian community

and thus is not subject to the prohibition on return

contained in Article 33 of the Convention.

8 I considered the following factors in favour of

deportation:

i) Mr Vazquez had previously been warned on

10 June 1983 against further transgression and

advised that his conviction in 1980 for

malicious injury had rendered him liable to

deportation;

ii) Mr Vazquez's offences are serious and have

occurred regularly since arrival in Australia;

iii) he has made no significant contribution to the

community;

iv) he has no strong ties in Australia and all of

his family live in Cuba;

v) his chances of re-offending are extremely high."

The Minister's Deportation Policy (part of T2) takes into account the seriousness of the offence and then refers in paragraphs 11 to 16 inclusive to the problems of deporting persons facing punishment in the country of origin. This is not regarded as being persuasive as "against the removal of a person who is a risk to Australia". However, such matters are to be considered, and the Statement of Reasons accepts as a fact that the applicant will face imprisonment in Cuba if deported there, for matters which are not criminal in this country.

14. Whatever perturbation the Tribunal feels about the applicant being allowed into Australia at all, the fact remains that as the result of a political act he was admitted nearly nine years ago. My request to those representing the Minister to inquire as to any other place to which the applicant could be deported other than Cuba, lead to an adjournment of this matter for nearly a month. The end result of the inquiry was to be informed via Exhibits 2 and 3 that there was no likelihood of any alternate haven being provided under the auspices of the United Nations High Commissioner for Refugees in the foreseeable future. I do not regard this reply as satisfactory and indeed consider more urgent efforts might have been taken to see, for example, if the United States of America would have the applicant back. The suggestion in the deportation submission in paragraph 10 T33 p 5 of allowing the applicant a reasonable time to seek legal admission to a country other than Cuba is derisory. For a primitive Afro-Cuban in Long Bay Gaol to even know how to go about making representations to foreign governments would require an education he does not possess. Australia has recognised the need for a paternalistic approach to less developed peoples, notably the aborigines.

15. The task of the Tribunal is to reach a conclusion, having as its principal object the best interests of Australia. Included in those best interests as Smithers J. once observed is an element of compassion. I am not satisfied with the view that Australia may accept political refugees as permanent residents and then deport them to face improper punishment in an authoritarian country, when they have committed offences warranting deportation, without making some efforts to find them sanctuary. The Minister's own policy recognises that criminal sanctions in Cuba are not entirely irrelevant (paragraph 12).

16. The Migration Act, 1958 (Cth) ("the Act") confers a power on the Minister to order deportation of an alien who has been a permanent resident for a period aggregating less than ten years, where the alien has committed an offence for which he has been sentenced to imprisonment for not less than one year. The applicant fits those criteria. But the power is not an unlimited and non examinable power. It exists in the context of the Act, and for the purposes of the Act. It is not a power to correct mistakes in allowing unsuitable migrants into the country, or to deport people on the ground that they are mentally ill, having become so after achieving permanent residency status. The context of the power is the gravity of the criminal offence at the base of the Minister's order. The analysis I have made indicates to me that the applicant's offences are not as grave as the deportation submission makes them out to be, having regard to the surrounding circumstances.

17. Nevertheless, even having regard to those circumstances, I would be inclined to affirm the Minister's decision, because of the likelihood of further violence from the applicant, if it were not for the unjust punishment the First Assistant Secretary admits the applicant would be likely to receive in Cuba (T2). In the circumstances, I am taking the course of remitting the matter for reconsideration pursuant to s.66E(3) of the Act, with the following recommendations:

1. If the Minister wishes to still affirm his order he

should not do so until his officers have made

satisfactory arrangements to secure a place to

which the applicant may be deported without danger

of unjust punishment, in spite of the problems

mentioned in paragraph 11 of his policy. As the

applicant came from the United States of America,

perhaps that country will take him back.

2. If the Minister is minded to permit the applicant

to remain in Australia, he should do so only when

he is satisfied the applicant has submitted to

appropriate psychiatric treatment and is no longer

a danger to Australian women.