Anusornchonseree and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 1169

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1169

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 2004/1013

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WERA ANUSORNCHONSEREE

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date4 November 2004

PlaceMelbourne

Decision The decision under review is affirmed.

[Sgd The Hon R J Groom]

Deputy President

CATCHWORDS

VISAEX – IMMIGRATION – cancellation of visa for failing the character test on the basis of having a substantial criminal record – character test – past and present criminal conduct – discretion that the Tribunal may exercise where the applicant fails the character test – examination of the applicant’s criminal record – necessity to balance the expectations and protection of the Australian community against other considerations  – held the applicant was convicted of very serious offences and there is a risk he will re-offend – decision under review affirmed.

Migration Act 1958 – ss499, 501

Ministerial General Direction (No 21)

Yung v Minister for Immigration and Multicultural Affairs (21 October 1998) (Unreported)

Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36 @ 39

Huynh and Minister for Immigration and Multicultural and Indigenous Affairs (2004) AATA 938

Mairana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119 @ 123

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643

Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 [AATA 442)

REASONS FOR DECISION

4 November 2004  The Hon R J Groom (Deputy President)

1.          This is an application to review a decision by a delegate of the respondent to cancel the applicant’s Class BB-155 category visa.

2. The cancellation was made under s501(2) of the Migration Act 1958 (“the Act”) on the ground that the applicant did not pass the character test within the meaning of the Act.

3.          The decision to cancel the visa was made on 2 June 2004 and the applicant was notified on 26 August 2004.   He is presently being held in detention.

4.          The hearing was held in Melbourne on 25 October 2004.    The applicant was represented at the hearing by Ms Georgina Costello and the respondent by Mr Steven Small.    Oral evidence was given by the applicant, the applicant’s partner Samantha Cameron, Dr Simon Kennedy a Clinical and Forensic Psychologist, the applicant’s sister Wena Behcup, and his two brothers Sarawat and Yuthana Anusornchonseree and Andrew Reid a social worker.    Several documents were tendered in evidence, including statutory declarations, letters of support and medical and psychological reports, as well as the G documents.

Background Facts

5.      On the basis of the material before me, I find the  facts as set out in this and subsequent paragraphs:

(a)The applicant was born in Bangkok, Thailand on 14 October 1975.   He is now 29 years of age.

(b)He arrived in Australia on 4 September 1989 aged 13 years.   Apart from 3 brief visits to Thailand he has lived in Australia since that date.

(c)The applicant’s parents divorced when he was about 7 years of age.   He suffered some sexual abuse from a family associate when he was 9 years old.  He came to Australia with his mother, stepfather and two brothers and a sister.   The family settled in Melbourne.

(d)He attended Collingwood High School, but as he was the only Thai student at the School he felt lonely and isolated.   He soon became friends with a group of Vietnamese boys at the school.   The applicant began smoking marijuana and  on his 18^th birthday one of the Vietnamese boys gave him an injection of heroin.   He became addicted to heroin at about that time.

(e)The applicant has convictions for the following offences:

Court & Date	Offence	Sentence
Williamstown M C, 30.06.95	Attempt Traffic Heroin Possess heroin (2 counts) Use Heroin (2 counts) Fail to Answer Bail	2 months.  To be served by way of Intensive Correction Order. All charges convicted.  Community Based order for 18 months.  To perform 200 hours unpaid community work.  To undergo assessment & treatment for drug addiction.
Sunshine M C, 07.09.95	Use Heroin	Convicted & fined $150
B’meadows M C 06.10.95	Rehearing re 30/06/95: Attempt Traffick Heroin Fail to Answer Bail Possess Heroin (2 counts) Use Heroin (2 counts)	2 months sentence suspended for 24 months. 1 month concurrent.  Sentence suspended for 24 months. All charges convicted and fined aggregate $1000
Sunshine M C 03.11.95	Use Heroin	Without conviction.  Fined $300
Werribee M C 17.04.96	Use Heroin	Convicted & fined $250
Melbourne M C 13.06.96	Breach re 06/10/95: Attempt Traffick Heroin Use Heroin Fail to Answer Bail	Breach of suspended sentence. Sentence re-instated.  To serve 2 months Re-instated.  To serve 1 month. Concurrent
Melbourne M C 29.07.96	Traffick Heroin (4 counts) Possess Heroin (2 counts) Use Heroin (2 counts) Fail to Answer Bail Theft from Shop Use Heroin Unlawful Possession Theft	9 months on each charge. Concurrent.  Sentence suspended for 12 months. To undergo treatment at the Forensic Drug & Alcohol Service. 3 months on each charge concurrent & concurrent. Sentence suspended for 12 months.
Melbourne M C 14.01.97	Theft of a Motor Vehicle Driving whilst Licence Susp/Cancel/Disqual Attempt Traffick Heroin Go Equipped to Steal/Cheat Possess regulated Weapon (2 counts) Theft (2 counts) Attempt Obtain Property by Deception Possess Cannabis Use Cannabis Use Heroin (2 counts) Possess Heroin Attempt Use Heroin	4 months on each charge concurrent. All licences cancelled & disqualified for 12 months. 3 months concurrent. 1 month on each charge concurrent & concurrent. 7 days on each charge concurrent & concurrent
Melbourne M C 21.03.97	Possess Heroin	1 month.  Drugs forfeited.
Melbourne M C 03.12.97	Traffick Heroin Use Heroin	21 days on each charge. Concurrent
Prahran M C 09.07.98	Theft Attempt Commit an Indictable Offence Go Equipped to Steal/Cheat	Aggregate 42 days imprisonment. Concurrent. Sentence wholly Suspended for 1 year.
Prahran M C 21.07.98	Attempt Theft from Motor Vehicle Breach of Suspended Sentence Order Re 09.07.98	1 month imprisonment.  Concurrent. Effective total State term imposed is 1 month. Cumulative upon State sentences presently being served. Convicted & discharged. On each charge: Suspended sentence wholly restored.  The restored term to be served is 42 days.
Melbourne M C 29.01.99	Intentionally Damage Property Drive Whilst Disqualified (3)	On each charge: 2 months imprisonment. Concurrent.  To be served by way of an Intensive Correction Order. Defendant required to attend at Werribee Community Correction Centre by 01.02.99.
Melbourne M C 21.05.99	Burglary-Intent to Steal (2 counts) Theft (3 counts) Theft of a Motor Vehicle (2 counts) Possess Regulated Weapon Breach re 29.01.99	Aggregate 6 months imprisonment. Concurrent.  Sentence partially suspended for 12 months. Term to be served: 2 months. On each charge: Aggregate 6 months imprisonment. Concurrent. Sentence partially suspended.  Term to be served is 2 months. Effective total State term imposed: is 2 months. Licence cancelled & disqualified for 3 months. Aggregate 6 months imprisonment. Concurrent.  Sentence partially suspended.  Term to be served: 2 months. Effective total State term imposed: 2 months Breach of ICO.  Order cancelled.  To serve unexpired portion of 53 days.
Melbourne M C 10.11.99	Re 21.05.99: Burglary-Intent to Steal (2 counts) Theft (3 counts) Theft of a Motor Vehicle (2 counts) Possess Regulated Weapon Traffick heroin Use Heroin Breach of Suspended Sentence Order Re 13.09.99: Go Equipped to Steal/Cheat Re: 19.05.99 Possess Heroin Use Heroin	On each charge: Suspended sentence wholly restored. Restored term to be served:  4 months 4 months imprisonment Concurrent.  Effective total State term imposed is 4 months. 7 days imprisonment.  Concurrent. With conviction. Fined $100. 1 month imprisonment Concurrent. 7 days imprisonment. Concurrent 7 days imprisonment. Concurrent
Melbourne M C 22.12.99	Theft Criminal Damage (Intent Damage/Destroy) Go Equipped to Steal/cheat (3 counts) Theft of a Motor Vehicle Handle/receive/Dispose of Stolen Goods	6 months imprisonment.  Concurrent. 6 months imprisonment.  Concurrent On each charge: 6 months imprisonment.  Concurrent. 6 months imprisonment.  Concurrent.  Disqualified from driving for 3 years. 6 months imprisonment.  Concurrent. Effective total State term imposed is 6 months.  Part concurrent with State sentences presently being served.  Concurrent portion of sentence is 4 months.
Preston M C 22.02.00	Theft from Shop (Shopsteal) Fail to Answer Bail Re 23.06.99 Attempt Theft of a Motor Vehicle Theft Go Equipped to Steal/Cheat	42 days imprisonment.  Base sentence.  Effective total State term imposed is 84 days.  Part concurrent with State sentences presently being served. Concurrent portion of sentence is 63 days. Aggregate 42 days imprisonment.  Cumulative. Aggregate 42 days imprisonment. Cumulative. Aggregate 42 days imprisonment. Cumulative.
Werribee M C 22.03.00	Possess Heroin	7 days imprisonment.  Concurrent.
Melbourne M C 30.10.00	Traffick Heroin Use Heroin Possess Drug of Dependence (Not named) 2 counts Use Drug of Dependence (Not Named) Conceal Money – being Proceeds of Crime	12 months imprisonment. Concurrent. Effective total State term imposed is 1 year. Non-parole period fixed at 6 months. On each charge: 12 months Imprisonment. Concurrent.  Sentence partially suspended for 2 years.  Term to be served is 9 months. 12 months imprisonment. Concurrent.
Melbourne M C 08.08.01	Prohibited Person Possess a Firearm Possess Controlled Weapon Without Excuse (2 counts) Possess a Dangerous Article Go Equipped to Steal/Cheat Handle/Receive/Dispose of Stolen Goods Unlicensed Driving Obtain Property by Deception Traffick Amphetamine Possess Heroin Use Heroin (2 counts) Breach of Suspended Sentence Order Breach re 30.10.00 Use Heroin Possess Drug of Dependence (Not named) (2 counts) Use Drug of Dependence (Not named) Conceal Money – Being Proceeds of Crime	On each charge: aggregate 6 months imprisonment.  Concurrent. Effective total State term imposed is 6 months. Aggregate 6 months imprisonment. Concurrent. Aggregate 6 months imprisonment. Concurrent. Convicted & Discharged Convicted & Discharged Breach Proven. Sentence re-instated. 3 months on each charge concurrent & concurrent.
Melbourne M C 16.11.01	Drive Whilst Disqualified	1 month imprisonment. Concurrent. Effective total State term imposed is 1 month. Disqualified from driving for 12 months.
Melbourne M C 28.08.02	Traffick Heroin Drive Whilst Disqualified Possess Controlled Weapon Without Excuse	6 months imprisonment. Cumulative.  Effective total State term is 9 months. Aggregate 3 months imprisonment. Base sentence.  Effective total State term imposed is 9 months. Aggregate 3 months imprisonment. Base sentence.  Effective total State term imposed is 9 months.
Melbourne County Court 16.10.02	Appeal re 28.08.02 Traffick heroin Drive Whilst Disqualified Possess Controlled Weapon Without Excuse	Appeal allowed.  Order of Magistrate Court set aside. 9 months CCTO, 6 months Imprisonment, 3 months community.
Melbourne M C 27.10.03	Theft (3) Theft Motor Car Assault Go Equipped Possess Drug	12 months aggregate sentence of imprisonment.  Non-parole period of 5 months.

(f)The applicant has been convicted of over 70 criminal offences from 1995 to and including 2003.   He has some 8 convictions for trafficking heroin and a conviction for trafficking   amphetamines.     His other offences include theft, theft of a motor vehicle/assault/burglary/handle/receive/dispose of stolen goods, obtain property by deception, fail to answer bail, driving whilst disqualified and possession of a firearm.

(g)On 30 October 2000 the applicant was sentenced to 12 months imprisonment for trafficking heroin.   He has served a number of other terms of  imprisonment as set out above.

(h)The applicant was advised of his liability to visa cancellation in October 2001 whilst serving a six month term of imprisonment.    He made a written response on 19 October 2001 saying, in part, he “had made mistakes and had already realised this and had already made some steps to change things….” He went on to say “… I am now 27 years old and now believe that its time to change and honestly believe I can”.

(i)On 28 August 2002 the applicant was again convicted for trafficking heroin, driving whilst disqualified and possessing a controlled weapon without excuse.   He was sentenced to 9 months imprisonment.   The sentence was varied on appeal to 6 months imprisonment and 3 months in the community.

(j)In an interview with an officer of the Department of Immigration, Multicultural and Indigenous Affairs on 16 April 2003, the applicant, in answer to the question “Is there any likelihood that you may repeat the conduct?”  said “I don’t want to.  I only want to stop heroin.”   He then gave details of a programme he would attend to assist in his rehabilitation.

(k)On 27 October 2003, the applicant was again in court and was convicted of theft, assault, possessing a drug and other offences.   

(l)On 15 August 2004 the applicant was again arrested and charged with certain offences.   In evidence he admitted that at the time he had “2 caps (of heroin)  in my hand”, and he went on to say “… I make full admission that I trafficking.” He now says that the 2 caps of heroin were really for his personal use.

(m)The applicant has a good relationship with his two brothers and a sister living in Victoria.    They have led law abiding, hard working and successful lives in Australia and intend residing permanently here.  All are determined to assist the applicant to overcome his drug addiction and live a law abiding life in Australia.  

(n)Although the applicant’s mother occasionally lives in Thailand,  the evidence is that the applicant has no known support in Thailand should he be required to return.    The applicant is clearly fearful of going back Thailand.  There is a possibility that he may have to undertake compulsory military service if he returns to that country.    There is also a risk he may face imprisonment. He is currently on a methadone programme and it is unclear as to what sort of programmes are available in Thailand  to assist him in his rehabilitation.

(o)The applicant is particularly close to his sister, Mrs Wena Behcup.  The evidence establishes that she has visited him regularly in prison.   Mrs Behcup owns a Thai restaurant business, and has offered to pay for a Naltrexone  implant and help the applicant to attend appropriate rehabilitation programmes.   Despite having two children with another expected shortly and operating her business, she believes she has time to provide support to the applicant.

(p)The applicant fell in love with Ms Samantha Cameron 4½ years ago. They have been in a serious and loving relationship since then.   Samantha has her own health and other difficulties but appears to be genuinely committed to supporting the applicant.   The two hope eventually to marry and have children.

(q)The applicant was a crown witness in criminal proceedings after witnessing a serious assault of a prison inmate.  This was a commendable action by the applicant, and has obviously placed him at risk of retaliation.   He has also cooperated with police in various other ways, has readily confessed to the  crimes he has committed and  has pleaded guilty in court proceedings.

(r)Clinical and Forensic Psychologist, Dr Simon Kennedy  who was a witness for the applicant said in a report tabled in evidence as follows:

“At the age of 29 years, he has established a relatively sound support network around him and has clearly well developed links with medical practitioners who have appropriate treatment instituted for him.

Mr Anusornchonseree’s chances of rehabilitation in my opinion, based on this evaluation  are good.   He presents with sound motivation to undertake whatever rehabilitation is necessary.   I should not that he has not had formal substance-abuse rehabilitation which in my view would be appropriate for him, and would substantially improve his prognosis.”

He also said in his report:    

“He is also acutely aware that he has limited chances available to him, and presented as motivated to avoid recidivism and remain drug-free.”

Dr Kennedy also said in oral evidence.

“In my opinion, while it is not possible to ever give categorical statements about recidivism, he presents as an individual with good prospects of rehabilitation.   He presents as an individual who, in my view, based on probability, is unlikely to re-offend.”

6.          Mr Kennedy was clearly engaged to interview and assess the applicant for the purpose of this hearing.    He interviewed the applicant and did a full clinical assessment on 20 October 2004.   The hearing was held on 25 October 2004.   The interview was held at the Maribyrnong Detention Centre.   Dr Kennedy said in evidence “This was a relatively tight schedule”, he went on to say “… I saw him on that day and this report was dictated on the day too.”    On being asked about previous treatment he said “… he would have had  a number of counselling options available to him.” (my emphasis)

7.          Dr Kennedy indicated in his evidence that he believed that the applicant had “…a couple of minor drug education sessions …”.   He went on to say “I think the majority of those lasted over a couple of days.”   However the applicant himself in his evidence said he did a series of “… 12 hours drug and Alcohol Treatment and Relapse Prevention.   I done altogether 24 – it take me three months”.    

8.          During Dr Kennedy’s oral evidence he was asked in cross examination if he believed that in the last 6 months the applicant had developed “a commitment to move on and change his behaviour?”   Dr Kennedy said “Well, certainly that is what it appears and that is what it looks like to me…”.    However the reality is that the applicant was arrested as recently as 15 August 2004, less that 3 months prior to the hearing, and charged with certain offences.    He admitted in evidence that he was in possession of 2 caps of heroin at that time.

9.          I am not persuaded that Dr Kennedy had available to him all of the necessary facts about the applicant’s prior conduct and full and correct details of the various courses he had previously undertaken, to support his conclusion that the applicant was now motivated, has good prospects of rehabilitation and is unlikely to re-offend.   That apparent deficiency in background information weighed against the clear and undisputed facts about the applicant’s long criminal record and ongoing re-offending, despite past attempts to assist him, leave me unpersuaded that rehabilitation will succeed and that he is unlikely to re-offend.

Section 501 and Direction No 21

10. Pursuant to s501(6)(a) of the Act a person does not pass the character test if he or she has a substantial criminal record within the meaning of s501(7) of the Act.

11. Under s501(7)(c) a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.

12. On 30 October 2000 the applicant was sentenced by the Melbourne Magistrates Court to 12 months imprisonment for trafficking heroin. It is not in dispute that the applicant has a substantial criminal record under s501(7)(c) and therefore does not pass the character test.

13. Even if the applicant does not pass the character test, the Tribunal has the power to exercise the discretion provided in s501 of the Act in favour of the applicant. Ministerial General Direction (No 21) – “Under s499 Visa Refusal and Cancellation Under s501 of the Migration Act 1958.”       “(Direction No 21)” guides the Tribunal in the exercise of that discretion.  

In speaking about a similar Direction, Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 643:

“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that power in reviewing that decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.”

14.     I  also agree with the view expressed by Deputy President Wright in Re To Nguyun Doung and Department of Immigration and Multicultural Affairs 2001 [AATA 442) when he said:  

“… the Tribunal is not confined or fettered by the Minister’s Direction and is free and, indeed has the duty, to make its own assessment of how the discretion should be exercised according to the justice of the case by balancing and evaluating the competing issues which have arisen for resolution.   In this process so-called secondary considerations may well outweigh primary considerations depending upon the facts of the case (see Aksu v Minister for Immigration and Multicultural Affairs per Dowsett J [2001] FCA 514).”

15.     As stated in 2.2 of the Direction:

“Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.”

16.     So the duty of the Tribunal in a case such as this is to carefully weigh up all of the competing considerations, and paying due regard to Direction No 21, decide how best to exercise the discretion in order to achieve justice.

17.        In considering the discretion it is necessary to have regard to the primary considerations set out in Direction 21, namely the protection of the Australian community, the expectations of the Australian community and the best interests of any children, and to adopt a balancing approach which takes into account all other relevant considerations.

Protection of the Australian Community

18.     (a)       It is first necessary to consider the seriousness and nature of the conduct.

2.6 of  Direction No. 21 states:

“It is the Government’s views that the following examples of offences which are considered by the Government to be very  serious:

(a)The production, the importation, distribution, trafficking (including possession for this purpose) commercial dealing, or selling if illicit drugs:

·     persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;

·     the Government views non-citizens who have sort to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders.   It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

·     offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community.”

19.        It is obvious from the above record that the applicant has been convicted of many serious offences.   He has some 8 convictions for trafficking heroin  and a  conviction for trafficking amphetamines.    Although the evidence is that he was involved in trafficking for the purpose of financing his own drug habit the offence  remains serious as was made clear by as Brennan J in Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36 at 39:

“The criminal sale of heroin is an offence which raises a strong case for deportation: whether the offender be a pusher who seeks a profit from a loathsome trade, or whether he be an addict who seeks merely to maintain his supplies of the drug.”

Heroin is specifically mentioned in 2.6(a) of Direction 21 and heroin related offences are “considered by the Government to be very serious”.   The applicant agrees that these offences have to be regarded as serious and said:  “I may hurt someone accidentally when using or selling”.   The evidence suggests that the quantity of drugs involved was relatively small, but nevertheless trafficking heroin and attempting to traffic heroin are serious offences. ( See also  Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938).

20.        The applicant has indicated in written evidence before the Tribunal “I am not a bad person.   I don’t cause a danger to the community and also I am not involved in major criminal activities.”    However, it is quite clear that the applicant has been involved in a course of criminal conduct over many years involving very serious offences which do in fact endanger members of the Australian community.

21.        The Tribunal must also consider the likelihood that the conduct may be repeated.    In assessing this risk, the Tribunal must consider whether the person has previously been warned about the risk of cancellation or deportation but has since re-offended.

22.        The applicant was advised of the liability of visa cancellation in October 2001 whilst serving a prison sentence but despite the warning has continued to re-offend.    He was convicted of further offences in 2002 and 2003 and has admitted being in possession of heroin as recently as August 2004.   It is plain from the decision of Mairana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119 @ 123, that offences committed after the triggering offence are relevant to the applicant’s status and the question whether or not he should be deported.

23.        The applicant has established a pattern of offending over a significant number of years.   Despite the penalties imposed, rehabilitation courses he has undertaken, support from family members and promises made, he continues to offend.   After carefully considering all of the evidence, I have concluded that the risk of the applicant re-offending is relatively high.

24.        A further matter to be considered under Direction No 21  is the issue of general deterrence.    The aim of general deterrence is to deter people from committing the same or similar offences and is a significant factor in determining whether or not to cancel a visa.    The principal deterrent in criminal activities is the penalty imposed upon conviction, but visa cancellation can have an impact in discouraging other non-citizens from being involved in similar offences and activities.

Expectation of the Australian Community

25.        Paragraph 2.12 of Direction No 21 states:

“The Australian community expects non-citizens to obey Australian laws while in Australia.   Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application to cancel the visa held by such a person.   Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.”

26.        The applicant has been involved in various serious criminal activities over a number of years and as indicated above, many of those offences are considered  by the Government to be very serious within the terms of Direction No. 21.    The nature of these offences, particularly those relating to heroin are such that fair-minded members of the Australian community would expect non-citizens who breach such laws whilst in Australia to have their visas cancelled. 

27.        The Tribunal must also consider the best interests of the children as a primary consideration as well as Article 3.1 of the Convention Of The Rights Of The Child.    There are no children involved in this case and so this primary consideration and the Convention are  not relevant.

Other Considerations

28.        Paragraph 2.1(7) provides that other considerations may be taken into account in determining how to exercise the discretion given under s501(2) of the Act.

29.        As indicated above applicant now has no real links with Thailand and is extremely fearful of having to live in Thailand.   His mother resides in Thailand from time to time but he cannot rely on her for support.   There has been no contact with his natural father since his parents divorced a number of years ago.   If he returns to Thailand he may face military service or even imprisonment.

30.         Also as mentioned above the applicant does have strong family support in  Australia.  It will obviously be very upsetting and worrying for his brothers and sister if the applicant is required to return to Thailand.

31.        The applicant has a de facto relationship with Ms Samantha Cameron  who is an Australian citizen.   It will clearly be very distressing for Ms Cameron if the applicant is returned to Thailand and it may well have an adverse effect on her health.   She could perhaps join the applicant in Thailand, but that would cause further pain for her because her mother is seriously ill in Australia.

32.        The applicant was only 13 years of age when he arrived in Australia and is now 29 years of age.      However his long period of residence in this country is not of itself a reason for not cancelling the visa.  I refer to the comments of Her Honour, Justice Mathews in Yung v Minister for Immigration and Multicultural Affairs  (21 October 1998) (unreported) where Her Honour made the following observation:

“Where a pattern of criminal behaviour indicates a likelihood that the person will commit further serious crimes, deportation should be seriously considered, notwithstanding that the person arrived in Australia as a minor.   The overriding consideration stressed in the policy statement is the need to protect the Australian community against the criminal behaviour of non-citizens.”

I agree with Her Honour’s observations.

Conclusion

33.        The applicant has a very lengthy list of convictions and continues to offend.   There is no persuasive evidence that future attempts at rehabilitation are likely to succeed.   The applicant has a longstanding heroin addiction and has committed drug and other offences over an extended period despite indications at various times  that he has reformed.

34.        Although Dr Kennedy considered there was a good prospect of rehabilitation, I find that Dr Kennedy was not provided with all the necessary background information particularly about recent conduct and courses attended.   On all of the evidence I conclude that the applicant has a relatively high risk of committing further drug related offences.

35.         I have no reason to doubt the good character and the intentions of the applicant’s family living in Australia.   They have all indicated that they are prepared to help the applicant, however he has been offending over a long period of time and past support from the applicant’s family has not proven to be successful.   A decision to cancel the applicant’s visa will cause distress to his family and also to his supportive partner, Ms Cameron.

36.        There is overwhelming evidence to support the view that in order to protect  the Australian community  and in keeping with the expectations of the Australian community the applicant’s visa should be cancelled.   He has been given every opportunity to rehabilitate himself and to refrain from committing further offences but to no avail.

37.        After weighing up all relevant considerations I find that there is no alternative but to affirm the decision under review.

38.        The Tribunal therefore affirms the decision under review.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  25 October 2004
Date of Decision  4 November 2004
Counsel for the Applicant         Ms Georgina Costello
Solicitor for the Applicant          O'Sullivan and Ruffilli
Counsel for the Respondent     Mr Steven Small
Solicitor for the Respondent     Australian Government Solicitor