Bui and Minister for Immigration and Citizenship
[2008] AATA 488
•13 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 488
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1427
GENERAL ADMINISTRATIVE DIVISION ) Re HOANG ANH BUI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Justice Tamberlin, Presidential Member Date13 June 2008
PlaceSydney
Decision The decision under review be set aside, and the visa of the applicant is not cancelled. ..............[sgd]................................
Presidential Member
CATCHWORDS – IMMIGRATION – visa-ex – whether applicant’s visa should be cancelled on character grounds – very serious criminal record – protection and expectations of the Australian community – best interests of the child – other considerations – whether appropriate time to cancel visa arises at beginning of period of imprisonment – best interests of the child and low likelihood of recidivism weigh in favour of not cancelling visa – decision under review set aside.
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RELEVANT ACT:
Migration Act 1958 (Cth): ss 499(1), 499(2A), 501(2), 501(6), 501(7)
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CITATIONS:
Kwong Leung Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
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REASONS FOR DECISION
13 June 2008 Justice Tamberlin, Presidential Member 1. This is an application for review by the Tribunal of a decision of a delegate of the Respondent (“The Minister”) given on 13 March 2008 to cancel Mr Bui’s Class UK, Sub-class 820 (Spouse) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
Background
2. Mr Bui is a Vietnamese citizen who first came to Australia in February 1997. He was 23 years of age and he originally obtained a Sub-class 560 (Student) visa as he was studying in Australia. That visa expired on 2 June 2000, but Mr Bui unlawfully remained in Australia after that date.
3. On 22 July 2004 Mr Bui applied to remain in Australia permanently on the basis that he was in an established de facto marital relationship with an Australian citizen. He was by then the father of an Australian citizen child, born in September 2002. Mr Bui was granted a Sub-class 820 Partner (Provisional) visa on 3 August 2005. His application for a Sub-class 801 Partner (Residence) visa was outstanding at the time of the decision to cancel his provisional visa. With the same partner he now has a second child, also an Australian citizen, who was born in June 2006.
4. On 3 September 2005, Mr Bui was arrested in possession of a quantity of prohibited drugs and charged with deemed supply under s 25 of the Drug Misuse and Trafficking Act (NSW).
5. While on bail, Mr Bui was again arrested and charged with offences relating to the importation of a commercial quantity of narcotics. He pleaded guilty to those offences and was sentenced to a term of imprisonment of 16 years and 6 months. His earliest release is February 2017. Therefore, as at the time of this hearing, Mr Bui has approximately nine years of his minimum term of imprisonment to serve.
Legislation and the Direction
6. According to s 501(2) of the Act, the Minister may cancel a visa if the person who holds that visa does not pass the “character test” contained in s 501(6). Section 501(2) empowers the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person is unable to satisfy the Minister that he or she passes that test.
7. Section 501(6) of the Act provides that a person does not pass the character test if one of a number of grounds set out in ss 501(6)(a)-(d) is met. The ground relevant to this application is contained in s 501(6)(a), which provides that a person does not pass the character test if he or she has a “substantial criminal record”, as that term is defined in s 501(7) of the Act. It is common ground that Mr Bui does not pass the character test because he has a substantial criminal record.
8. Accordingly, the central issue in this application is whether, as a matter of discretion, the Tribunal should cancel Mr Bui’s visa, in light of the evidence, material and submissions put before it.
9. When exercising its discretion, the Tribunal must comply with any directions promulgated by the Minister pursuant to s 499(1) of the Act: see s 499(2A). Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act in relation to the performance of those functions or the exercise of those powers. The Tribunal is one such body: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. The relevant direction issued by the Minister in relation to the exercise of the discretion in s 501(2) of the Act is cited as “Direction – Visa Refusal and Cancellation under section 501 – No.21” (“the Direction”). As the Direction states in its preamble, its purpose is to provide guidance to the Tribunal in making decisions to refuse or cancel a visa, and thereby to facilitate the Act’s objective of regulating, in the national interest, the coming into and presence in Australia of non-citizens.
10. Part 2 of the Direction sets out what considerations should be taken into account, and what weight should be given to those considerations, when exercising the discretion in s 501(2). It requires the Tribunal to have regard to three primary considerations and, where relevant, a range of other considerations. Greater importance or weight should be placed on the primary considerations, although the Direction acknowledges that the other considerations may also attract some, albeit lesser, importance or weight.
11. The three primary considerations are:
·the protection of the Australian community, and members of the community;
·the expectations of the Australian community; and
·in cases involving a parental relationship between children and the person under consideration, the best interests of the children.
12. The other considerations which the Direction identifies as potentially relevant include, inter alia, the disruption to the non-citizen’s family and business, any marriage or de facto relationship he or she is in, the degree of hardship which members of the non-citizen’s family may suffer, the likelihood of the non-citizen evading any outstanding legal matter, evidence of rehabilitation, the purpose of the non-citizen’s stay in Australia and some of Australia’s international obligations.
Primary consideration one – protection of the Australian community
13. The first factor to consider in relation to this primary consideration is the seriousness and nature of the conduct involved. In this case, Mr Bui’s criminal conduct is appropriately categorised as “very serious” within the meaning of the Direction. Relevantly, the importation, distribution, commercial dealing or selling of illicit drugs is an offence considered by the Minister to be very serious: see paragraph 2.6(a) of the Direction. The Direction also states that persons who embark upon drug-related crime for financial gain are to be considered as showing a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people. Non-citizens who have sought to profit from the import or supply of such goods are to be regarded as extremely serious offenders, and the Direction emphasises that, as a deterrent to other criminals and to protect Australian society, it is important to ensure that it is clearly understood that crimes involving drug trafficking are viewed as completely unacceptable by the Australian community.
14. In paragraph 2.7 of the Direction, the Minister states that it is the Government’s view that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct against the community. In this case, Mr Bui has been sentenced to two terms of imprisonment, the longer of which, relating to his importation of illicit drugs, was for 16 years and 6 months, with a non-parole period of ten years. The earliest date on which he may therefore be released from prison is 14 February 2017. In addition, Mr Bui was previously convicted of supplying ecstasy or attempting to supply ecstasy at a dance party in September 2005, a conviction for which he was sentenced to two years and three months imprisonment, with a minimum term of twenty months. The Minister contends on the present hearing that Mr Bui’s sentencing record is indicative of the serious nature of his conduct.
15. In his sentencing remarks on the importation offence, Judge Freeman accepted that Mr Bui understood that the boat in which the drugs were concealed was the means by which a prohibited substance was brought into Australia. That prohibited substance was a total of 34.8 kilograms of pure methylamphetamine contained in a gross weight of about 46 kilograms with a minimum wholesale value of approximately $5,000,000. Judge Freeman described this as a very substantial importation, and took the view that Mr Bui had taken an active role in its importation by approaching a custom’s agent and recruiting other people to take physical delivery of the boat, making some necessary payments and facilitating the communication between the various importers.
16. Paragraph 2.8 of the Direction mandates that the Tribunal must take into account four considerations when exercising the discretion. Only one of those considerations, namely the relevance of any mitigating factors advanced by the non-citizen, is applicable in the present case. The mitigating factors advanced by Mr Bui related chiefly to his contrition after the commission of the offences, the way in which he was drawn into the importation offence and his personal connections to his family here in Australia. I have considered these factors and, in my view, they do not alter my finding that Mr Bui’s conduct is appropriately categorised as “very serious” within the meaning of the Direction.
17. The second element to consider in relation to the protection of the Australian community is the risk of recidivism. Any such risk is of central importance in this application. The Minister submits that, having regard to Mr Bui’s past criminal conduct and the possibility of future repetition of those offences, it is clear that any recidivism could cause great harm to members of the Australian community. The Minister referred to the decision of Davies J, sitting as President of the Tribunal, in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81, where his Honour said that “even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm”. The Minister emphasises that in appraising this risk it is necessary to take into account that Mr Bui committed two offences within a short period of time. Moreover, on 11 December 2007, Mr Bui had in his possession in prison what was alleged to be an item that could be used to escape from prison or to commit an offence. This latter matter is one which I have taken into account, but to which I do not give much weight. I give greater weight to the fact that a second offence, of a similar nature to the first, was committed by Mr Bui shortly after the first offence and in spite of a warning issued after the first offence that his visa could possibly be cancelled.
18. On behalf of Mr Bui, it is pointed out that the delegate of the Minister was not satisfied that he was likely to be a repeat offender and that this weighed significantly in his favour. This is a matter which I must evaluate for myself. In his sentencing remarks, Judge Freeman said that Mr Bui pleaded guilty at an early stage in respect of other charges and was entitled to the benefits flowing from that candour. I consider that this is important in relation to an assessment of his recidivistic tendency, and have taken it into account. His Honour noted that Mr Bui admitted soon after being charged with possession of ecstasy that he had the prohibited substance and was guilty of that offence. This was of very significant weight and was not, in his Honour’s view, materially diminished by the fact that Mr Bui then committed a major importation offence while on conditional liberty (that is, “on bail”) from the possession offence, although such conduct was regarded as aggravating in the sentencing of the second offence. His Honour noted that Mr Bui did not have a record which disentitled him to some leniency, since he previously had committed only two minor offences which were of no significance to the sentencing exercise. It was also noted that Mr Bui had a de facto partner and two young children who would be adversely affected by his imprisonment. His Honour considered that, while there was not extraordinary hardship for Mr Bui’s family, the relationships with his de facto partner and children were matters of grave significance.
19. Having regard to these considerations and to the length of the prison term imposed, and while I think there is some prospect of recidivism on the part of Mr Bui, I do not consider it possible to say at this stage that there is a strong risk. There is in my view a real prospect that family ties, together with the effect of ten years in prison, will have a significant effect on Mr Bui for the better. However, realistically, this cannot be determined with any accuracy at the present time, and any firm finding as to the risk of recidivism would in large part be speculative.
20. The final matter which the Direction requires the Tribunal to take into account when assessing the primary consideration of the protection of the Australian community is any general deterrence which may arise from the cancellation of Mr Bui’s visa. The Minister submits that the cancellation of the visa and subsequent removal from Australia may prevent or discourage similar conduct by like-minded persons. Crimes involving drug trafficking must be viewed as completely unacceptable to the community and there must be a deterrent to those who consider engaging in such misconduct. The Minister submits that this is a case in which the possibility of general deterrence should be given significant weight by the Tribunal. I accept this submission as a general principle.
21. However, in my view, the term of imprisonment imposed in the present case is substantial and will act as a strong deterrent. The sentence sends out a strong message to others who may contemplate crimes involving drug trafficking. If the visa is not cancelled at this early stage of the imprisonment, particularly in circumstances where cancellation can be reconsidered at a later stage closer to expiry of the period of incarceration, the refusal to cancel will not detract from the deterrent effect which Mr Bui’s sentence will have on non-citizens who may consider committing crimes of a similar nature, or otherwise provide any encouragement to them to undertake such activities.
Primary consideration two – expectations of the Australian community
22. The second primary consideration to take into account is the expectations of the Australian community. There can be no doubt that the community expects persons to comply with Australian law and not to engage in criminal activity, especially of such a high order as is manifest in the present case. This is a factor which, in my view, clearly weighs in favour of cancelling Mr Bui’s visa in this case.
Primary consideration three – the best interests of the children
23. The third primary consideration mandated by the Direction is the best interests of Mr Bui’s children. In this case, the welfare of the children is a most important factor. Mr Bui is father to two young girls, Anny, born on 3 September 2002, and Kathy, born 16 June 2006. Anny and Kathy are both Australian citizens.
24. Paragraph 2.15 of the Direction states that a child’s best interests will generally be served if he or she remains with both parents. There is evidence before me from Mr Bui’s de facto partner, Ms Nguyen (who is the mother of both Anny and Kathy), that the children have had some contact with Mr Bui since he was imprisoned, and that she has tried to maintain a close relationship between herself, her husband and their two daughters. Ms Nguyen says that she has never considered abandoning him or trying to bring up the girls as if they had no father. She states that she visits Mr Bui as often as possible and takes her elder daughter with her. Often these visits are restricted to one per fortnight, as she lives some distance from Goulburn prison, but she says that she is in daily telephone contact with him. Ms Nguyen says that the older daughter, Anny, who lives here in Australia, is very attached to her father and likes to talk to him on the phone whenever she can, and that the younger daughter, Kathy, is staying with relatives in Vietnam as a temporary arrangement before she comes back to start school in Australia. Ms Nguyen believes that it is very important for her daughters to grow up in contact with their father, even if he is in prison, and she considers that it would be a very bad situation for them if he is not allowed to stay in Australia after his release from prison, since she wants her daughters to have the advantages of life in Australia and considers that they will be much worse off in Vietnam if they need to return there to live with their father. In Ms Nguyen’s view, it would be possible to keep the family together after Mr Bui’s release from prison, provided that he can stay in Australia. Ms Nguyen is keen that her daughters will have the potential for a proper relationship with their father. I accept her evidence without reservation.
25. Ms Pham, a friend of both Mr Bui and Ms Nguyen, also gave evidence which supports the fact that Mr Bui has had regular contact with his family by telephone and by visits to the prison and that both he and Ms Nguyen wish to have a united family as soon as possible.
26. Mr Bui gave evidence about his concern that, if he were removed to Vietnam at the expiry of his prison term, he would not be able to keep his family together. He speaks of his concern at having already made his family suffer a great deal and expresses his desire to be involved in the upbringing of his daughters as much as possible. When Mr Bui is due for parole the children will be aged 11 and 15 respectively. This would allow at least the older child to make submissions on her own behalf as to her relationship with her father. The younger child will probably be back in Australia. She will be completing her education and will have the prospect of establishing a relationship with her father.
27. I accept the submission that the needs of the children at a date some distance in the future cannot be precisely ascertained at the present time. In my view, the Tribunal cannot determine exactly the closeness of any relationship which will develop between the children and their father, but on the evidence presently before me there is a clear possibility that such a relationship may develop. Accordingly, I am of the view that it would be in the best interests of the children in this case for Mr Bui’s visa not to be cancelled, thereby preserving the future possibility of a relationship forming between him and his daughters. These considerations of the children’s welfare point to the prematurity of the Tribunal making a decision at the present time to cancel the applicant’s visa. In other words, they weigh in favour of a decision not to cancel Mr Bui’s visa at this stage.
Other considerations
28. The Direction also lists some other matters which may be relevant to the exercise of the discretion in s 501(2) of the Act. Not all of these matters are relevant to this case, and indeed the Direction states that appropriate consideration should only be given to the matters “where relevant”, and that they generally should be “given less individual weight than that given to the primary considerations”. In light of this, I consider below some but not all of the matters which are classified by the Direction as “other considerations” and which are relevant to this application.
29. The first relevant consideration is the extent of disruption which would accrue to Mr Bui’s family if his visa is cancelled. I accept that this disruption could be very substantial, but that it is difficult to determine its extent at this stage, well before the expiry of Mr Bui’s term of imprisonment. In my view, it is premature to decide finally what level of disruption may occur when Mr Bui is released from prison and potentially deported in nine years’ time. At this stage, the most which can be concluded is that significant disruption might accrue, and that such disruption cannot be disregarded as unlikely or impossible. This is a matter which should be considered at a later stage.
30. In addition, I accept that there is a genuine and affectionate de facto relationship between Mr Bui and Ms Nguyen. All the evidence supports this conclusion, and it is one which was not contested by the Minister. The existence of a genuine de facto relationship which has yielded two young children is a consideration which weighs in favour of not cancelling Mr Bui’s visa.
31. The evidence before the Tribunal also established that significant hardship would accrue to members of Mr Bui’s family who are lawfully resident in Australia, namely Ms Nguyen and his eldest daughter, if his visa was cancelled. That hardship would take the form of both emotional strain and financial difficulties. The emotional strain, it is said, would naturally derive from the separation of a father from his children and his partner. The financial difficulties would arise from the costs of Ms Nguyen and her eldest daughter returning to Vietnam to visit Mr Bui. On the hearing, Ms Nguyen gave evidence as to her financial status and the unaffordable expense of flying home to Vietnam. I accept this evidence given by Ms Nguyen and I accept that some hardship, both emotional and financial, would accrue to her and her eldest daughter if Mr Bui’s visa was cancelled. This consideration militates in favour of not cancelling Mr Bui’s visa.
32. As to the composition of Mr Bui’s family, the evidence establishes that he presently has some family resident in Vietnam who may provide some support to him, but it is difficult to predict the extent of this support at this stage of his incarceration. Accordingly, the fact that some members of Mr Bui’s family live in Vietnam is not a matter to which I give significant weight. In addition, any predictions of the success of rehabilitation are matters better left for appraisal at a later stage. All that can be said on present evidence is that Mr Bui has family members in Australia who intend to remain in Australia, and that there appears at this time a substantial basis for concluding that Mr Bui will be able to rehabilitate and build upon the several years of good conduct in Australia which predate his first conviction.
33. In relation to the question whether the cancellation will affect a permanent or temporary visa, I note that Mr Bui holds a temporary visa. Although it is not clear what relevance the Direction attributes to the fact that someone holds a temporary instead of a permanent visa, I have factored this matter into my consideration of the application. It is, however, not a matter to which I give much weight.
34. The final consideration I have regard to under this section of the Direction is the purpose and intended duration of Mr Bui’s stay in Australia (which includes any compassionate circumstances relevant to his application). I note that Mr Bui has been resident in Australia since 1997 when he arrived as a 23 year old. He has continued to reside in Australia for the duration of that time, with some exceptions when he travelled to Vietnam, and he has started a family with a partner who is an Australian citizen. I think that these matters are important. The fact is that he grew up in Vietnam and spent a period of his adult life there may mean that he would be able to reintegrate into Vietnamese society, but it does not in my view neutralise the fact that he has now been resident in Australia for over a decade and that his immediate family lives here.
Conclusion
35. As an exercise of the discretion under s 501(2) of the Act, and having regard to all of the matters set out in the Direction and discussed above, I am of the view that Mr Bui’s visa should not be cancelled.
36. The decision of President Matthews in Kwong Leung Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56 is of some guidance in setting out the relevant principles and discussing the relevant considerations in the context of an extremely serious drug offence. In that case, her Honour concluded that the welfare of the children outweighed the negative consideration of the “extremely serious offence”, even in circumstances where the applicant had little contrition or remorse because he did not see his offence as meriting the punishment imposed. Her Honour considered that the applicant had nevertheless learned as a consequence of his seven years of incarceration, the separation from his family and his isolation that crime, and particularly drug-related crime, did not pay. Her Honour considered that these matters would act as a painful disincentive to recidivism and emphasised that the offence was an isolated one. In relation to his personal circumstances, her Honour emphasised the genuineness of the applicant’s relationship with his de facto partner and the potential hardship which she and his children would suffer.
37. It is true that Mr Bui, by importing such a large quantity of illicit drugs, has committed an extremely serious offence. However, it is equally true that by the time he is released from prison, he will have been severely punished for it. While the Australian community expects that courts will impose appropriate punishment for such offences, it does not necessarily follow that, where such punishment has been meted out, the community expects that a perpetrator of such crimes will, if he or she happens to be a non-citizen, also be deported from Australia. This is particularly so in circumstances where there remains a strong possibility of reform, there are close family relationships with a de factor partner and children in Australia, and there would be a severe adverse impact on those family members.
38. In my view, there is at present a reasonably strong connection between Mr Bui, his de facto partner, Ms Nguyen, and their children, and this can be expected to develop further over the coming years. While there is force in the Minister’s suggestion that the cancellation of the visa would not result in any immediate change in circumstances, nevertheless such a cancellation creates the real possibility of damaging the relationships when the present term of imprisonment expires.
39. I consider that, in this case, the welfare of the children, the probability that the conduct will not be repeated and therefore the risk to the Australian community is substantially reduced, and the fact that a substantial penalty has already been imposed on Mr Bui, when taken together with the mitigating circumstances identified above, justify the conclusion that the visa should not be cancelled. In addition, I am of the view that there is great difficulty in predicting how the present attitude, behaviour and relationships of Mr Bui will change over the period of his imprisonment. Attempting to do so will only possess a small degree of utility, given that I consider there to be the prospect of strong family relationships developing over that period of time. These matters, together with the history of Mr Bui’s behaviour after being charged and the impression which a substantial prison term will leave upon him, lead me to conclude that it is not appropriate to cancel the visa at this point in time. Cancellation is a matter which, in my view, should not be determined at such an early stage of Mr Bui’s incarceration.
40. For these reasons I set aside the delegate’s decision to cancel the visa in this case. The decision of the Tribunal, having regard to all of the evidence, is that the visa should not be cancelled.
I certify that the forty (40) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin, Presidential Member.
Signed: ............[sgd]....................................................................
Lucas Bastin, Associate to the Honourable Justice TamberlinDate of Hearing 12 and 13 May 2008
Date of Decision 13 June 2008
Solicitor for the Applicant Mr M. Jones
Solicitor for the Respondent Mr T. Etueati
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