Chung and Minister for Immigration and Border Protection (Migration)
[2017] AATA 895
•16 June 2017
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895 (16 June 2017)
Division:General Division
File Number(s): 2016/3699
Re:Leonardo Chung
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Senior Member A Nikoliċ AM CSC
Member K ParkerDate:16 June 2017
Place:Melbourne
The Tribunal decides to:
affirm the decision of a delegate of the respondent dated 30 June 2016 and made under s 501CA(4) of the Migration Act 1958 refusing to revoke a decision dated 3 June 2015 cancelling the applicant’s Bridging E (Class WE) (Subclass 050) Visa.
................[sgd]........................................................
Deputy President S A Forgie
Catchwords
MIGRATION - refusal to revoke decision to cancel applicant’s visa – decision affirmed.
Legislation
Migration Act 1958 ss 501(3) and (7), 501CA(1) and (4)
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Secondary Materials
Direction No. 65 made under section 499 of the Migration Act 1958
REASONS FOR DECISION
Deputy President S A Forgie
Senior Member A Nikoliċ AM CSC
Member K Parker
The applicant, Mr Leonardo Chung, has held a Bridging E (Class WE) (Subclass 050) Visa since 19 September 2005. On 3 June 2015, however, the Minister cancelled Mr Chung’s visa under s 501(3A) of the Migration Act 1958 (Migration Act) as he had a substantial criminal record and was serving a sentence of imprisonment for an offence against the law of a State. Under s 501CA(1), Mr Chung applied to the Minister to revoke the cancellation decision but, in a decision dated 30 June 2016, the Minister refused under s 501CA(4). For the reasons that we give in the following paragraphs, we have decided to affirm the decision not to revoke the decision to cancel Mr Chung’s visa.
BACKGROUND
Cancellation of Bridging E (Class WE) (Subclass 050) Visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(c) are relevant for the purposes of s 501(3A). Those circumstances are that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, only s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”. As the County Court of Victoria sentenced Mr Chung to a term of 12 months’ imprisonment after convicting him of Armed Robbery, he has a substantial criminal record by virtue of that provision. At the time the Minister’s delegate made the decision, Mr Chung was also serving a sentence of imprisonment on a full-time basis for the offence against a State law.
Representations may be made to revoke cancellation decision
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[1] Section 501CA(4) provides that:
“The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.”
[1] Migration Act; s 501CA(1)
On 5 June 2015, Mr Chung sought revocation of the Minister’s decision.[2] He did so in accordance with the invitation extended to him under s 501CA(3)(b)[3] and has satisfied the requirements of s 501CA(4)(a). In the circumstances of this case, Mr Chung cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7). That follows from the fact that he had been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii), which requires us to consider whether “… there is another reason why the original decision should be revoked.” The way in which we are required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[4]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[5]
[2] G documents; G2 at 74-75
[3] The Minister is obliged to extend that invitation to him after making a decision under s 501(3A).
[4] [2016] FCA 1166
[5] [2016] FCA 1166 at [38]
Mr Chung set out the essence of his reasons for seeking revocation in his request. He wrote:
“The reasons for these current imprisonment terms that I’m serving are from my last drugs related offence, which I’m or have already served the bottom sentenced and then breach my remaining parole by non compliances and I was never given the chances to prove myself of re-parole, since this matter was dealt with 5 years ago and had not re-offended since this sentenced was handed down and not one incident while in custody (Fulham Corrections) so I begged the Minister please looking into my report from the psycology’s about my upbringing and a lots of missfortuned growing up as a child from ‘before’ and ‘after’ my arrival in Australia and the reason why I am having these kind of life’s style that is painfull and difficult to bear and still struggling until these days so some drug of choice to block my trauma, so reconsideration of my revocation are very important for me and most of my family that are living in Australia as citizens. I would like to have a normal life everyone else in Australia, and have the help that I needed to gain a positive life style and outcome. Thank-you.”[6]
[6] G documents; G11 at 76
EARLY LIFE
On the basis of his oral and written evidence together with that of his sister, Ms Leonarda Chung, and reports, to which we will refer, we make the findings of fact set out in this passage of our reasons.
Mr Chung was born in 1980 in Timor-Leste. He was the fourth of seven children. The children’s father was not part of their lives. Ms Leonarda Chung and her sister, Ms Carla Chung, have differing understandings as to why that was so but the differences in their understandings are of no consequence in this context. What is of consequence is that their father was not in their lives and that their mother struggled to care for and feed the children. Consequently, when he was one month old, his mother gave him to his paternal grandmother to care for. She had already given his older sister, Ms Leonarda Chung, to her paternal grandmother when she was seven months of age. Both children were raised by the paternal grandmother, their great grandmother and their uncles.
Their father died in 2014 and, although she has been very ill for extended periods of time, their mother is still alive. She lives in Timor-Leste. Mr Chung and Ms Leonarda Chung do not have a close relationship with their mother but Ms Leonarda Chung’s is closer than her brother’s as she has visited her mother and spent time with her. One of their sisters is presently living in Timor-Leste and is a nurse. She is able to help their mother as Ms Leonarda Chung did when she returned to Timor-Leste when their father was very ill. Both children state that they witnessed killings, torture and ill treatment of people generally while growing up. Mr Chung attended an Indonesian school until he was 13 years of age.
Mr Chung came to Australia in December 1994 when he was 14 years of age. He came with his great grandmother, grandmother, two of his sisters (but not Ms Leonarda Chung) and two of his cousins left Timor-Leste and came to Australia. They were accommodated in public housing in Richmond, which is an inner suburb of Melbourne. The five children, then aged between 11 and 17 years, shared a bedroom. Mr Chung spoke very little English but attended an English language school for six months. There was a Timor-Leste community in Melbourne. Although he knew some of them, he did not socialise with them very much.
At home, Mr Chung hated the way in which his uncle was treating him at home. He was very strict and would hit him. His uncle told him that was the way things are done in Timor‑Leste. Ms Leonarda Chung confirmed that was so. Mr Chung felt very confused. Melbourne was very different from the small community in Dili in which he had lived. He started to go out a lot with friends and would arrive home late. The later he arrived home, the greater the conflict with his uncle. Mr Chung started to fear going home because his uncle would hit him. He either slept on the street or in the laundry at the bottom of the high rise apartments where his family lived.
We accept Mr Chung’s evidence that some six months after arriving in Australia, he was sexually abused by a man. It happened one night when he had missed his last tram home and accepted an offer of a lift from a man whom he thought was acting out of kindness. The man was not acting out of kindness. Mr Chung included the details in his Statutory Declaration made on 2 October 2008 but he has found it very difficult to talk about what happened that night. There is no need for us to set out those details but we accept that it is always in his mind, that he generally[7] cannot bring himself to talk about it and that coincides with the time at which he started, first to drink, and then to use marijuana. He was 14 years of age at the time but started using heroin when he was 15 and was using it daily by the time he was 16. Even when he is speaking with drug and alcohol counsellors regarding his abuse of those substances, he finds that he cannot talk about it. He is only able to forget about it when he is using drugs or has consumed a lot of alcohol.
[7] In April 1995, Ms Leonarda Chung, her husband and uncle arrived in Australia and were reunited with the family in Melbourne. It was at this time that Ms Leonarda Chung discovered her brother’s drug problems. He later told her about the sexual abuse.
Mr Chung started school in Australia at the Year 9 level at the John Gardiner Secondary College. During Year 10, the Department of Human Services removed him from his grandmother’s house as it was concerned about his safety. He was taken to live with a family and began to attend the Debney Park Secondary College. Mr Chung liked his new school but found the work more difficult. He started missing classes and spent a lot of time in the CBD. Mr Chung was using drugs at the weekends on a social basis. When he was at the John Gardiner Secondary College, drugs would occasionally be available by way of friends or in the community. At that time, Mr Chung “sort of knew” that he had a problem but felt that he was not addicted to drugs at that time. He did not use drugs for the first few months at the Debney Park Secondary College but they then started to appear at the school.
Mr Chung returned to Richmond without completing Year 10. He stayed with friends as he was still under the care of the Department of Human Services. If he did not contact at prescribed times, he was marked as a “missing child” and would be housed in a secure place. That happened often. He left the home where he was living because he did not feel a sense of belonging and his abuse of drugs was escalating. Mr Chung stopped going to school and lived with a lot of other kids.
Mr Chung’s best friend, who was dealing in heroin, introduced him to the drug in rock form. Initially, his friend gave it to him for nothing. Later, Mr Chung found that he needed a lot of money to support his habit and obtained that by dealing. Dealing meant that the drugs were more easily obtained and for a cheaper price.
Mr Chung moved back to his grandmother’s home when he was 18 years of age and the Department of Human Services was no longer involved in his care. On many occasions, however, he would sleep at the homes of friends. Again, he found his uncle to be very strict and he would often avoid being at his grandmother’s home when his uncle was present. He did not find it to be a stable home. At the same time, he found himself in Youth Training Centres because he started to get into trouble with the law.
Mr Chung met a girl whom he loved very much. They lived together for an extended period in a room in his grandmother’s home. His sister, Ms Leonarda Chung estimated that they lived together for 2½ years but there is also evidence that it lasted for some eighteen months. Whatever the period, it was a relationship that lasted for a significant period of time. Mr Chung stopped using illegal drugs during this time and used Buprenorphine for approximately three years. He worked full-time in a laundry throughout the period that they lived together. Ms Leonarda Chung said that the relationship ended in approximately 2001 when his partner’s parents found out about his past and disapproved of the relationship. Her brother, she added, has always found it difficult to form friendships because, as soon as the parents of his friends learned of his past, they rejected him.
When his partner left him, Mr Chung gave up his employment in the laundry. He suffered from depression and he found it very hard to start again without her. Things were not good at his grandmother’s home. He was 21 years of age when his girlfriend left. Within six months, he said, he had begun to take and deal in drugs again.
Mr Chung found employment at the end of 2005 in a logistics company. He worked in a warehouse where he was engaged in wrapping and packaging and a lot of manual work. It was a physically demanding job that did not pay well, he said, but he did not use drugs while he worked there. He left in 2007 when he injured his left wrist and has not looked for work since.
CONVICTIONS, EVENTS AND COURSES
Mr Chung has appeared both in the Melbourne Children’s Court and in the Magistrates’ Court and the County Court of Victoria on a number of occasions. We have set out the charges and their outcome in the various courts in the following table. If the information is available on the evidentiary material that we have, we have set out the dates on which the offences occurred. We have also interposed in the table particular events that we find have occurred in Mr Chung’s life as well as matters such as courses he has attended.
Court
Date (conviction/court appearance)
Date
(offence or incident)Offences
(Charged or investigated)Sentence
In December 1994, Mr Chung arrived with his grandmother and other family members in Melbourne.
Mr Chung attended an English language school until approximately the middle of 1995.
His sister and her husband and uncle arrived in April 1995. Mr Chung had come to police notice in relation to offending behaviour by April 1995 but had not been charged in the first instance.
Melbourne Children’s Court
10 April 1996
Attempt Theft From Motor Vehicle (2 Charges)
Go Equipped to Steal/Cheat
On all charges: Proved without conviction.
Adjourned for 3 months to be of good behaviour.Melbourne Children’s Court
7 January 1997
Fail to Answer Bail
Burglary
Theft
Theft from Shop
Theft from Motor Vehicle
Criminal Damage Intent Damage/Destroy (2 Charges)
On all charges: Proved without conviction.
Probation for 6 months.
Melbourne Children’s Court
7 January 1997
Theft from Motor Vehicle
Wilfully Damage Property
On both charges: Proved without conviction.
Probation for 6 months.
Melbourne Children’s Court
6 June 1997
Theft from Shop
(4 Charges)Attempt Theft
Attempt Criminal Damage – Intent Damage/Destroy
On all charges: Proved without conviction.
Bond $200 to be of good behaviour for six months.Melbourne Magistrates’ Court
11 March 1998
Traffick Heroin
att. Traffick Heroin
Use HeroinConvicted. Community Based Order for 12 months to perform 150 hours of unpaid community work.
Melbourne Magistrates’ Court
17 September 1998
Possess Heroin
(2 Charges)Traffick Heroin
Fail to Answer Bail
GrantedConvicted. Community Based Order for 12 months.
Required to attend the Prahran Community Corrections Centre by 18/09/1998 by 04:00PM.
The order commences on 17/09/1998 with the following conditions:
To perform 200 hours of unpaid community work over 12 months.
To submit for testing for alcohol/drug use.
To undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed by the Regional Manager.
To be under the supervision of a Community Corrections Officer.Attend and participate in programs of the Youth Substance Abuse Service as directed.
This CBO is concurrent with the CBO of 11/3/98 which is breached but allowed to continue.
All core Community Based Order conditions to apply.
Convicted. Community Based Order for 12 months with conditions as above.
Moonee Ponds Magistrates’ Court
5 October 1998
Use Other Drug of Dependence
Unlawful Possession
(2 Charges)On all charges: Convicted. Fined an aggregate of $800.
Mr Chung starts relationship with his girlfriend at some time in 1999
Melbourne Magistrates’ Court
11 January 1999
Breach of Community Based Order Imposed on 17 September 1988.
Possess Heroin
(2 Charges)
Traffick Heroin
Fail to Answer Bail
Breach of Community Based Order Imposed on 11 March 1998.
Traffick Heroin
Att. Traffick Heroin
Use Heroin
Possess Heroin.
Possess Restricted Substance
Possess Regulated WeaponBreaches proven.
Community Based Orders cancelled.
Convicted. 2 months aggregate imprisonment. Concurrent. Sentence partially suspended. After serving 1 month to be of good behaviour for 12 months.Breach proved. CBO cancelled.
Aggregate 1 Month imprisonment. Concurrent. Effective total State term imposed is 1 month 3 days reckoned as a period of imprisonment already served under this sentence.
Aggregate 1 month imprisonment. Concurrent.
Effective State term is 1 month 3 days reckoned as a period of imprisonment already served.Melbourne Magistrates’ Court
17 November 1999
State False Name When Requested.
State False Address When Requested.
Breach of Suspended Sentence Order
On all charges: 4 months detention in a Youth Training Centre on each charge.
Adjourned to 31 December 1999.Melbourne Magistrates’ Court
17 November 1999
Possess Heroin
Traffick Heroin
Use Heroin
Possess Heroin
2 Charges)Theft from Shop
(2 Charges)Fail to Answer Bail
On each charge: Convicted. Detention in a Youth Training Centre for 4 months.
Melbourne Magistrates’ Court
27 November 2000
Traffick Heroin
Possess Money Being The Proceeds of Crime
On each charge: Convicted. Community Based Order for 6 months. The CBO commenced on 27 November 2000 with the following conditions:
Required to attend the Prahran Community Corrections Centre by 29/11/2000 by 04:00PM.The order commences on 27/11/2000 with the following conditions:
To perform 40 hours of unpaid community work over 6 months.
All core Community Based Order conditions to apply.Mr Chung’s relationship with his girlfriend ends at some point in 2000 or 2001.
Melbourne Magistrates’ Court
25 July 2001
Breach of Community Based Order Imposed on 27 November 2000.
Traffick Heroin
Possess Money Being The Proceeds of Crime
Breach proven.
Community Based Order cancelled.
On all charges: Convicted.
Fined aggregate of $600.Melbourne Magistrates’ Court
6 May 2003
Possess Drug of Dependence
(not named)Use Other Drug of Dependence
Fail to Answer Bail Granted
(4 Charges)Wilfully Damage Property
Possess Controlled Weapon Without Excuse
(2 Charges)Convicted. Fined an aggregate of $700
Convicted. Fined an aggregate of $700.
Melbourne Magistrates’ Court
13 August 2003
Receive Money Being The Proceeds of Crime
Possess Heroin
Traffick HeroinFail to Answer Bail
Granted
(2 Charges)Convicted. Imprisonment for 1 month concurrent wholly suspended to be of good behaviour for 2 months.
On both charges: Convicted. Imprisonment for 1 month concurrent wholly suspended to be of good behaviour for 2 months.
On both charges: Convicted. Imprisonment for 1 month concurrent wholly suspended to be of good behaviour for 2 months.
Melbourne Magistrates’ Court
25 November 2003
Possess Controlled Weapon
Weapon Without ExcuseConvicted. Fined $350.
On 18 February 2004, Mr Chung completed a psychoeducational program entitled “Coping with Anxiety” delivered by Global Solutions at the Port Phillip Prison [8]
Melbourne Magistrates’ Court
7 June 2004
Obtain Property By Deception
Tamper With Motor Vehicle
(4 Charges)Traffick Heroin
Theft From Shop (Shopsteal)
Theft
Obtain Property By Deception
(6 Charges)
Attempt to Commit Indictable OffencePossess A Dangerous Article
2 Charges)
Go Equipped To Steal/Cheat
Possess Drug of Dependence
Possess Heroin
(2 Charges)
Traffick Drug of Dependence
Recklessly Cause Injury
Assault With Weapon
Assault by Kicking
TheftConvicted. Community Based Order for 12 months. To attend the Carlton Community Corrections Centre by 07/07/2004 PM. The order commences on 07/07/2014 with the following conditions:
To perform 60 hours of unpaid community work over 9 months.
To undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric treatment as directed by the Regional Manager.
To be under the supervisions of a Community Corrections Officer.
To attend for assessment and treatment for drug/alcohol addiction.
To submit for medical psych assessment and treatment as directed to undergo assessment for programmes to reduce reoffending and attend as directed.
To attend Colin Coxhead of Drug Safety Programme at North Richmond Community Health Centre and obey all lawful directions.
All core Community Based Order conditions to apply.On all charges: Convicted. Community Based Order for 12 months with conditions as above.
On all charges: Convicted. Community Based Order for 12 months with conditions as above.
Forfeiture order made by consent.
Order all property seized to be forfeited and destroyed.
On all charges: Convicted. Community Based Order for 12 months with conditions as above.
Forfeiture order made by consent.
Order all drugs/instruments seized to be forfeited and destroyed.On all charges: Convicted. Aggregate Imprisonment for 6 months concurrent.
Partially suspended after serving 2 months to be of good behaviour for 12 months.
Time held in custody, 71 days, reckoned as a period of imprisonment already served.
Cumulative upon any uncompleted term owed to the State Parole Board.On 5 January 2005, Mr Chung participated in a program entitled “Viral Hepatitis” delivered by Global Solutions at the Port Phillip Prison[9]
An undated document states that “The Apex Club of Nunawading would like to congratulate Leo Chung for completing the communications and job skills program”,[10]
On 21 January 2005, Mr Chug successfully completed a program entitled “Consequential Thinking” delivered by Global Solutions at the Port Phillip Prison[11]
On 24 January 2005, Mr Chung was an active participant in the “Program: Drug Education” delivered by the Uniting Care Moreland Hall Counsellor/Facilitator over 12 hours between 17 January 2005 to 24 January 2005[12]
On 4 March 2005 Mr Chung completed the Offending Behaviour (I) 12 hour program delivered by Global Solutions at the Port Phillip Prison [13]
On 20 April 2005, Mr Chug was an active participant in the “Understanding Drugs and Anger” program delivered by the Uniting Care Moreland Hall Counsellor/Facilitator over 12 hours between 12 April 2005 and 20 April 2005[14]
On 21 April 2005, Mr Chung completed an Anger Management program delivered by Global Solutions at the Port Phillip Prison [15]
On 6 May 2005 Mr Chung completed a program entitled “Communication Skills” delivered by Global Solutions at the Port Phillip Prison[16]
On 20 May 2005, Mr Chung completed the Offending Behaviour (II) 12 hour program delivered by Global Solutions at the Port Phillip Prison[17]
On 25 May 2005, Mr Chung completed the Court Readiness Program presented by the Professional Practice Students from the Monash University Faculty of Law[18]
Report dated 31 May 2005 by Dr Jillian Bull, Clinical and Forensic Psychologist[19]
Melbourne County Court
(No sentencing remarks)
16 September 2005
Robbery
Convicted. Imprisonment for 6 months.
Melbourne Magistrates’ Court
4 October 2005
Breach of Community Based Order Imposed on 7 June 2004.
Traffick Heroin
Traffick Drug of Dependence
Theft from Shop (Shopsteal)
Go Equipped to Steal/Cheat
Theft
Obtain Property by Deception
Attempt to Commit Indictable OffenceBreach of Community Based Order Imposed on 7 June 2004.
Breach proven.
Convicted. Aggregate imprisonment 4 months concurrent wholly suspended to be of good behaviour for 12 months.Breach proven. Convicted. No further penalty imposed.
Report dated 4 December 2005 by Ms Therese Meehan, a Counsellor Advocate with the Victorian Foundation for Survivors of Trauma.[20]
Mr Chung is employed by a logistics company from the latter part of 2005 until October 2006.[21]
Concern about Mr Chung’s behaviour in January 2007 to February 2007.[22]
Melbourne Magistrates’ Court
26 April 2007
Breach of Suspended Sentence Order Imposed on 4 October 2005
Traffick Heroin
Traffick Drug of Dependence
Theft from Shop (Shopsteal)
Go Equipped to Steal/Cheat
Theft
Obtain Property by Deception
Attempt to Commit Indictable OffenceBreach proven.
Suspended sentence wholly restored.
Restored term to be served is 4 months.Melbourne Magistrates’ Court
26 April 2007
Traffick Drug of Dependence
Fail to Answer Bail Granted
(2 Charges)Theft from Shop
(2 Charges)On all charges: Convicted. Imprisonment for 4 months concurrent.
Report dated 23 December 2007 by Ms Etervina Groenen, an East Timorese Support and Settlement Worker with the North Richmond Community Health Centre. [23]
Collingwood Magistrates’ Court
15 October 2008
10 January 2008[24]
27 August 2008[25]
Traffick Heroin
Possess Heroin
Deal in Property
Suspected To Be the Proceeds of Crime
Fail to Answer BailTraffick Heroin
(2 Charges)Possess Heroin
(2 Charges)On all charges: Convicted. Aggregate imprisonment 4 months concurrent. Time held in custody, 50 days, reckoned as a period of imprisonment already served under this sentence.
Aggregate 4 months imprisonment. Concurrent.
Sentence is wholly suspended. Time held in custody, 50 days, reckoned as a period of imprisonment already served under this sentence.Ms Lechner’s report dated 5 March 2010 prepared for court appearance on 22 March 2010.[26]
Melbourne County Court
(Sentencing Remarks)
22 March 2010
14 October 2009
Armed Robbery
Armed Robbery
Convicted: Imprisonment for 3 years.
Convicted: Imprisonment for 3 years imprisonment of which 2 years are concurrent and 1 year cumulative on Count 1.
Total effective sentence 4 years with a non-parole period of 2 years.
Judge Parsons noted that Mr Chung had successfully completed a number of courses while he was on remand awaiting sentencing for Armed Robbery (2) on 22 March 2010.[27] No reference is made to those courses in the evidentiary material.
Melbourne County Court
(Sentencing Remarks)
25 March 2011
1 October 2009
Armed Robbery
Convicted.
Imprisonment for 1 year.
Term to be served cumulatively with sentence then being served and a non-parole period of 2 years and 4 months dating from 22 March 2010.
[8] G documents; G31 at 181
[9] G documents; G31 at 185
[10] G documents; G31 at 184
[11] G documents; G31 at 188
[12] G documents; G31 at 187
[13] G documents; G31 at 180
[14] G documents; G31 at 186
[15] G documents; G31 at 183
[16] G documents; G31 at 190
[17] G documents; G31 at 189
[18] G documents; G31 at 182
[19] See [30]-[32] below
[20] See [33]-[37] below
[21] See [19] above and[65] below
[22] See report of Ms Groenen at [40] below
[23] See [38]-[40] below
[24] Report of Dr Cidoni: G documents; G22 at 145
[25] Report of Dr Cidoni: G documents; G22 at 146
[26] See [44]-[45] below
[27] G documents; G15 at 98
SENTENCING REMARKS
The evidentiary material contains the sentencing remarks made by Judge Parsons when sentencing Mr Chung on 22 March 2010 in respect of two convictions for Armed Robbery and in respect of one conviction for Armed Robbery a year later on 25 March 2011. The two sets of offences had been committed approximately a fortnight apart with the single count of Armed Robbery having been committed before the others. As Judge Parsons noted, normally the three charges would have been dealt with together but they were not. We will set out his remarks in relation to each separately.
22 March 2010: Armed Robbery (2) on 14 October 2009
Mr Chung pleaded guilty to both counts of Armed Robbery, for which the maximum sentence is 25 years. Judge Parsons described the circumstances in which the offences occurred and noted that they were, without doubt, serious offences:[28]
“… Charge 1 concerns an armed robbery on the Mobil service station, at 645 Bridge Road, Richmond. On Thursday 14 October 2009 at 2.30 am you left the housing commission flat in Elizabeth Street, Richmond, in possession of two syringes, one of which was filled with blue mouth wash and the other was filled with red cordial-like liquid. It was your intention to use the syringes by scaring a store attendant into opening the cash register for you. You walked into the Mobil service station in Richmond, approached the counter and asked for a packet of Winfield cigarettes. The attendant put the packet of cigarettes on the counter and waited for payment. You produced the two syringes and asked that the attendant … open the till. He moved away and locked himself in a room and rang the police. You left taking the packet of cigarettes.
Shortly thereafter you went to the 7-Eleven store at the corner of Swan and Stawell Streets in Richmond and the events thereafter gave rise to the second charge of armed robbery. Again you produced the uncapped syringes and pointed them at the attendant. You told the attendant that the syringes were infected and asked him to open the register. He did so and put the till on the counter. You took the notes out of the till and put them in your pockets and you asked the attendant for a plastic bag into which you could tip the coins. You left the store with approximately $330 in cash from the till and the attendant then called the police.
You were apprehended shortly thereafter by the police and found with the cash that you had taken. You then took the police to the place where you had abandoned the syringes and then returned with the police to the Fitzroy police station where you made full and frank admissions to both armed robberies. You said you had committed them in order to support your significant heroin habit.
No victim statements have been tendered in the matter and I am unsure as to whether or not the opportunity was offered to the victims to make a statement but it is clear from the deposition that they would have suffered considerable anxiety as they were the only persons at the store and of course, the stores at that early hour of the morning are regarded as ‘soft’ targets.”[29]
[28] G documents; G15 at 99
[29] G documents; G15 at 95-96
Judge Parsons took into account the report of Ms Carla Lechner, a Clinical and Forensic Psychologist, to which we will return below. In relation to Mr Chung’s particular circumstances, Judge Parsons said:
“I also note the other material that has been put before me and for the six months or so you have spent in remand, it is clear that you have used that time to at least begin to put into place your rehabilitation and you have successfully completed a number of courses that have been made available to you whilst on remand.
I am on balance satisfied that the chances of your rehabilitation depend on your ability to come to terms with your addiction to heroin and to the various other drugs that it is suggested you have taken over time but of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence and of course especially general deterrence which as is conceded by your counsel, is of considerable importance in a case such as this.
Clearly also specific deterrence is of some significance given your prior convictions and indeed with respect to your prior convictions, I should note that you have admitted before me to prior convictions and I understand that they number in excess of 80 convictions involving some 20 court appearances between 1998 and 2008 and of course some of those convictions and in particular the convictions for robbery in 2005 makes it highly relevant to my task in sentencing you today.
I must also bear in mind the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending which I find to be significant unless you do come to terms with your addictions and in particular your addiction to heroin.”[30]
[30] G documents; G15 at 98
25 March 2011: Armed Robbery (2) on 1 October 2009
Judge Parsons said in his sentencing remarks that the circumstances in which the offences had been committed, had been set out in the prosecution opening. That opening stated:
“On October 2009 at approximately 4:15 am the prisoner entered the 7-11 store on the corner of Lonsdale and Exhibition Streets, Melbourne. He was wearing a blue denim jacket, a white collared shirt, blue jeans and a red Ferrari cap. At the time he was armed with a small syringe.
The prisoner approached the counter where the victim, … [Victim] was serving and leant over the counter, exposing the syringe to … The prisoner then demanded money, saying ‘take cash’. At this point … has alerted authorities by activating the panic button.
… then threw the prisoner 3 to 4 twenty dollar notes. The prisoner then demanded fifty dollar notes to which … responded that he did not have any. … then threw some more notes down on the counter, all the while remaining as far away from the prisoner as possible. Following the prisoner’s demand for more money he has then reached across the counter and taken some more notes from the till.
Whilst this was occurring another customer … has entered the store and observed the robbery. … has asked … [the Victim] if everything was alright, to which the prisoner responded calmly ‘everything is alright.’
The prisoner then grabbed the money and left the store, heading east down Lonsdale Street.
Whilst the armed robbery was occurring the victim was fearful for his safety.
Approximately $300-$350 was stolen from the store.”[31]
[31] SG documents at 72-73
Judge Parsons noted that the offence had been committed about a fortnight before the other two offences for which he had sentenced Mr Chung on 22 March 2010. The three should have been dealt with together. He said:
“I was advised by your counsel that your time in prison has been used productively and you have made plans about your future after your release and you have made plans for where you will reside with your sister at Narre Warren, away from the troubled area in which you have previously resided with your grandmother in Richmond. You have also made plans for changing your medication from methadone to another drug which you believe will be of greater assistance to you. You also hope to enrol in an appropriate program to assist you with respect to your drug addictions whilst you are in gaol and prior to your release. .
You are clearly to be commended for this and these matters are taken into account in your favour in the sense that you have been utilising your time whilst within gaol for your rehabilitation.
All the various sentencing remarks that are made with respect to these issues of general deterrence and specific deterrence and the protection of the public are all, of course, of relevance in exactly the same way as they were then on the day of the previous sentence. Given I there set out all of the matters personal to you and that, of course, none of them has changed in the circumstances, there is no need for me to repeat them. The matters with respect to your prior convictions all remain as appropriate as they were then and I have no need to repeat any of them.
In the circumstances, of course, as well, I should mention the victim impact statement which is also before me and which, of course, I have taken into account and it is clear that the victim in this matter has suffered in the way that they set out in the victim impact statement.”[32]
The victim impact statement does not appear in the evidentiary material.
[32] G documents; G14 at 90-91
MR CHUNG’S EVIDENCE RELATING TO HIS OFFENCES
Mr Chung said that his very first offence, which was committed in the company of a woman friend, was unplanned. They were walking down a street when his friend, who was high on drugs as was he, suddenly grabbed a woman’s leg and then her bag. She took money from the woman’s bag and wanted to take the victim to her apartment. Mr Chung threw the keys and the key card back to the woman and called a taxi to take him and his friend to Crown Casino.
The second offence occurred when he demanded money from a man but he could not remember if he was armed or not. The man was scared and he was scared too because he thought that he would get into trouble for what he was doing but he wanted money at that stage. Despite that, he was high on drugs and had no fear of the consequences.
Mr Chung’s view of dealing in drugs is that it is a way of making money and means that he does not have to steal and rob from other people. He contends that dealing minimises a lot of crime. When he robbed the 7-Eleven stores, he said, he had not had any money for years. The offence of Assault by Kicking occurred when he was approached by a group of boys after he had stolen a bag. He tried to escape from them but the boys were trying to retrieve the bag. Mr Chung kicked one of them and the boy then stepped back.
ASSESSMENTS AND REPORTS REGARDING MR CHUNG
The material contains reports and assessments of Mr Chung’s health and situation at various points in time. We will summarise them in this section of our reasons.
2005: Dr Bull and Ms Meehan
Dr Jillian Bull Psy D is a Clinical Psychologist. She was asked in 2005 to investigate whether a link could be made between Mr Chung’s sexual abuse, which had only just been disclosed, and his drug-related criminal history. His solicitors asked for recommendations regarding his rehabilitation and counselling. At the time, Mr Chung was in Port Phillip Prison and was aware of the report’s purpose. Dr Bull interviewed him and also conducted a Beck Depression Inventory, which she described as a measure of psychological trauma. She set out the results of the test and what those results indicated before setting out her clinical opinion in her report dated 31 May 2005:
“The objective results of the Clinical Interview and the psychological assessment strongly indicate that Mr Chung is experiencing severe depression and severe post-traumatic stress. He is experiencing both the intrusive and avoidant components characteristic of PTSD. He presents as overloaded by trauma symptoms, and feels out of control of his internal state. Mr Chung is a person with both a trauma history and some self-disturbance. He demonstrates an inadequate personal identity where he is likely to be less self-confident than others, and more influenced by others or groups, and less functional under stress. These chronic symptoms may become ingrained into his personality if they are left untreated.”[33]
[33] G documents; G25 at 158-159
Dr Bull’s summary and recommendations set out Mr Chung’s history and continued:
“… The results of the testing showed that Mr Chung experiences symptoms of both chronic and acute trauma. His symptoms are consistent with a DSM-IV diagnosis of Post-traumatic Stress Disorder and of Clinical Depression. Since Mr Chung began to use substances subsequent to his traumatic experiences, it is plausible that he has used drugs to self medicate.
The writer recommends that Mr Chung be immediately provided with long-term specialist trauma counselling with a view to addressing some of his symptoms of trauma, depression, anger and anxiety.
It is recommended that particular attention be given to treating his intrusive flashbacks and memories, reducing his depression, monitoring his thoughts of self and other harm, and helping him to develop his sense of self. It is also recommended that counselling focus on helping Mr Chung to develop alternate ways of dealing with his emotions, and to assist him to develop other strategies of coping than avoidance and dissociation. It is expected that his depression will be resistant to treatment unless the dissociative element of his trauma symptomology is addressed.
It is recommended that he be seen weekly for the first 12 months and fortnightly for the subsequent 6 months, with regular treatment reviews.”[34]
[34] G documents; G25 at 159
Dr Bull had referred to traumatic events to which Mr Chung had been exposed in Timor‑Leste. Consequently, his solicitor referred him to The Victorian Foundation for the Survivors of Torture Inc. (VFST). A report dated 4 December 2005 was written by Ms Therese Meehan, a Counsellor Advocate with the VFST.[35] Ms Meehan visited Mr Chung once in the Port Phillip Prison and once when he had been released and took his history. Foundation House, which comes under the auspices of VFST, agreed to provide ongoing counselling to Mr Chung.
[35] G documents; G24 at 151-154
Ms Meehan referred to Mr Chung’s remembering and visiting his family of origin but not fully understanding why he had to be brought up by his grandmother. Family members interpret events differently and he believes that, because he was a sickly baby, it was thought that he would bring his birth family bad luck if he were to remain with them. Mr Chung views his uncle as a good person but also as the person who gave him harsh beatings into his adolescence. This set up a pattern of his running away from home and of being fearful of returning because of the inevitable beatings. Ms Meehan said that Mr Chung recalled little of his years in Timor-Leste except for some incidents of violence, which disturb him. She recorded his witnessing an incident in the street when a group of Indonesian police beat and kicked someone who had been part of a demonstration. He was shocked by what he saw as the malice and savagery of the attack. In Australia, he had not disclosed the sexual abuse because he felt deeply ashamed and blamed himself both for being too gullible and for hanging around on the streets.
Ms Meehan recorded that Mr Chung’s life began to spiral out of control with truancy, drug experimentation and petty crime. He stayed away from home to avoid beatings and verbal abuse from his uncle, ate poorly and stole food, felt hopeless and out of control and failed to maintain contact with service providers and counsellors. Mr Chung feels that he is easily influenced by his peers, has poor impulse control, no self-confidence and no sense of direction. The only stabilising period of his life occurred over an eighteen month period in 1999/2000 when he had a girlfriend. For the first time in his life, he had feelings of self‑worth and belonging and a strong drive to straighten out his life. He was able to maintain work for a period and there was a big reduction in his drug use and theft. Eventually, he told Ms Meehan, his immaturity led to his destroying the gains that he had made and he started to mix with old associates.
On the second occasion on which Ms Meehan saw Mr Chung, he had been released from prison. His release had been in September 2005 and she wrote that he had struggled with the customary post-release difficulties and feelings. He was excluded from any official prison release rehabilitation programs, where the criteria are specifically related to age, pre‑release engagement, geographical area, or mandated treatment area.
Mr Chung had voluntarily attended Foundation House on a weekly basis, made regular contact with the East Timorese support worker in his suburb, been in regular contact with his doctor who prescribed antidepressants for him and begun to attend his church and to participate in some parish weekend barbecues. He had attempted to immerse himself in family affairs by helping his grandmother but he struggled with loneliness, boredom and intrusive and distressing memories. The high rise flats, in which he lived, presented numerous temptations to draw him back into his old lifestyle. His relationship with his uncle had improved after his grandmother negotiated an arrangement whereby his uncle modified his behaviour.
Ms Meehan concluded that Mr Chung’s untreated trauma symptoms and poor self-esteem contributed significantly to his drug use, which was the primary cause of his offending behaviour. It was her opinion that he was engaged in the concept of changing from the then unproductive course of his life. Prison appeared to have lifted him out of the cycle of impulsively responding to depression and traumatic memories by engaging in drug use, petty crime and the other lifestyle elements that maintained his destructive pattern. His doing so did not, Ms Meehan observed, mean that Mr Chung would not suffer relapses in his behaviour. What his engagement in psychological and medical treatment and more productive patterns meant was that his relapses would be shorter in duration. At the time, he had full-time work and was taking the opportunity to work very seriously. Work was, in turn, reinforcing some of the resolutions that he had made in prison and his self-esteem had risen sharply.
2007: Ms Groenen
Ms Etervina Groenen is an East Timorese Support and Settlement Worker with the North Richmond Community Health Centre. She was asked by Mr Chung’s solicitors to provide a report regarding his mental state in and around February 2007 and she did so on 23 December 2007.[36]
[36] G documents; G23 at 148-149
Ms Groenen described various events that had occurred in January and February 2007, which indicated to her that Mr Chung was showing paranoid patterns of thought. On one occasion, she had called a CAT team to see if it could do an assessment but was advised that a team could not attend as he was not presenting as a risk to himself or to others. She was advised to take him to St Vincent Hospital’s Emergency Department but Mr Chung refused to go as he did not believe that he was unwell. Ms Groenen understood that Mr Chung had started to complain about his workplace in approximately October 2006. His particular complaints were about his colleagues whom he believed did not like him and whispered and gossiped about him. He could not tolerate them anymore and gave up his job soon after.
After another incident, Mr Chung was assessed by a CAT team and put on medication. Ms Groenen referred to that event as happening in January 2007 but Dr Cidoni, to whom we refer in the following section, thought that the intervention of the CAT team occurred in June 2007.[37] On 16 February 2007, Ms Groenen felt that Mr Chung was doing very well with his drug rehabilitation and his psychosis was under control. By the time she wrote her report in December 2007, Ms Groenen felt that Mr Chung was doing very well on both fronts. She concluded:
“I believe that with good support and certainty, Leonardo has good prospect of settling down and making a full contribution to the community. He has said and shown that he is serious about making a new start. …”[38]
[37] G documents; G22 at 145
[38] G documents; G23 at 149
2008: Dr Cidoni
Dr Anthony Cidoni is a Consultant Psychiatrist, who assessed Mr Chung at the request of his solicitors for a court appearance scheduled for 1 October 2008. His report is dated 23 September 2008. He was asked to report on a range of matters including the impact of Mr Chung’s history and his migration status upon his mental health, whether he has, and continues to be, suffering from any mental illness, whether his history has contributed to his drug use and to his past offending and the likelihood of his offending in the future.
Dr Cidoni reviewed all of the reports available to that time and interviewed Mr Chung. He prepared a comprehensive report. With regard to treatment, he noted that Mr Chung had been treated periodically with the antidepressant Citalopram since 2005. With the exception of the counselling he received from the VFST and to which we refer below,[39] Mr Chung has never had a psychiatric admission or consistent treatment or case management for mental health services. At the time of Dr Cidoni’s report, Mr Chung was awaiting review by the psychiatric services in the prison and was not on any psychotropic medication. All of Mr Chung’s offences were, in Dr Cidoni’s view, related to his substance abuse.
[39] See [66] below
Dr Cidoni referred to the trauma to which Mr Chung had been exposed in Timor-Leste and in Australia and was not surprised that it had led to his suffering from significant psychiatric, substance abuse and offending issues. In his opinion, Mr Chung has suffered from Dysthymic Disorder, which is at times complicated by Major Depressive Disorder, Post Traumatic Disorder, Heroin Dependence and Polysubstance Abuse including alcohol, cannabis, benzodiazepines and amphetamines and Amphetamine-Induced Psychosis. The substance abuse could be seen as an attempt to self-medicate. None of the conditions has been adequately treated. Mr Chung has not developed a personality disorder. Dr Cidoni recommended:
“In terms of treatment, Mr Chong [sic] should be treated with antidepressants to treat his psychiatric conditions and it is important that this medication be supplemented by psychological strategies to help manage his symptoms.
Specialist substance abuse treatment with a focus on motivational interviewing and harm minimisation is an important adjunct to any treatment. Consideration should also be given to re-prescribing an agent for opiate dependence as Mr Chung had described a prolonged period of abstinence when last treated.
Given that all of Mr Chung’s offending is related to substance abuse, successful treatment of his substance abuse in conjunction with adequate treatment of his depression and post-traumatic symptoms offers some hope of rehabilitation and reducing the risk of reoffending. Given the significant level of Mr Chung’s substance use issues, a lengthy residential program would be indicated immediately on release from prison and it is important that such options be explored whilst he is in custody.”[40]
[40] G documents; G22 at 146-147
2010: Ms Lechner
Ms Carla Lechner examined Mr Chung on 2 March 2010 and wrote a report dated 5 March 2010 based on her interview with him, the police brief of evidence and the reports to which we have referred above. She set out Mr Chung’s history extensively. She administered the verbal sub-tests of the Wechsler Abbreviated Scale of Intelligence to determine his level of comprehension, reasoning and judgment skills. Mr Chung also completed the Beck Depression Inventory, which is a self-report questionnaire that canvasses a range of psychological and physiological symptoms of depression experienced by Mr Chung over the previous two weeks.
The essence of Ms Lechner’s opinion is in the following two paragraphs:
“At interview Mr Chung presents as cognitively and emotionally immature with a limited ability to reflect on the impact that his behaviour has on both himself and others. He finds it hard to identify triggers to his negative feelings and to appropriately express them, tending to block out internal distress with substance abuse, thus inadvertently aggravating and exacerbating his underlying mood disorder. Mr Chung is currently experiencing symptoms of clinical depression, this being confirmed by a score at the top end of the ‘moderate’ range on the Beck Depression Inventory. Mr Chung’s mood disturbance is inextricably linked with his illicit drug use and ipso facto, his offending behaviour. Further psychometric testing indicates that his verbal intelligence is in the ‘borderline/low average’ range. His immature judgement and reasoning skills would be further compromised by substance abuse and/or a high level of emotional arousal.
Mr Chung expresses regret and shame for his actions. He was able to express appropriate victim empathy. He needed some assistance in understanding that his victims would have no idea as to his intentions hence their high level of fear. Mr Chung has genuine cognitive limitations in this regard but is very receptive to both learning and counselling supports. Whilst I understand that sentencing is the domain of the Court, from a purely clinical perspective, Mr Chung’s rehabilitation may be facilitated by a lengthy parole period that focuses on his treatment needs. Ideally a residential drug rehabilitation facility is recommended, but failing this, a high level of community support that encompasses pharmacological management of his addiction, coupled with personal, supportive counselling. …”[41]
[41] G documents; G21 at 139
DIRECTION No. 65
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[42] Those directions must not be inconsistent with the Act or the Regulations made under it.[43] The person or body to whom the directions are given must comply with them.[44]
[42] Migration Act; s 499(1)
[43] Migration Act; s 499(2)
[44] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Chung.
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[45]
[45] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non‑citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Chung’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[46] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[46] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[47] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[48]
[47] Direction No. 65 at [8(2)]
[48] Direction No. 65 at [8(4)] and [8(5)]
CONSIDERATION
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is determined.”[49]
[49] Direction No. 65 at [13.1(1)]
That statement makes clear that the persons’ conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
A. The nature and seriousness of Mr Chung’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeat offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
h)Where the non-citizen is in Australia, that a crime committed while the non‑citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;”.[50]
[50] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
We accept the view held by those who have been closely associated with Mr Chung, such as Ms Groenen, and those who have seen him for the purpose of preparing reports to assist the sentencing Judge, such as Ms Lechner and Dr Cidoni, that Mr Chung’s offences are linked to his abuse of various substances. We also accept that it might be said that his drug abuse is a consequence of the traumatic events that he witnessed while in Timor‑Leste and to the sexual abuse he experienced in Melbourne. Those facts, however, do not change the nature and gravity of the offences he committed. They are focused on his possessing and using drugs and of obtaining money to maintain his habit by trafficking drugs to other users. He has engaged in repeated offending of the same sort. The repetition adds weight to the seriousness of his pattern of offending and so does the fact that, on the last two occasions on which he committed offences, he armed himself with syringes. The last offences were committed on 1 and 14 October 2009. The only other offence involving his being armed led to his being convicted on 25 November 2003 with possessing a controlled weapon and having a weapon without an excuse. Mr Chung thought that he probably had a knife. He has damaged property but on only one occasion has he caused immediate physical injury to another. That came about when he kicked a boy who was one of a group trying to recover a bag he had stolen from them. The drugs that Mr Chung has trafficked have also caused harm to others.
The pattern and nature of Mr Chung’s offending leads us to conclude that his behaviour causes us serious concern. Although we acknowledge that Mr Chung has been reluctant to talk about abuse and trauma he has suffered in the past, we find that he did first speak with his sister, Ms Leonarda Chung, about it at some time after 1995. He also told Ms Meehan about it and she included it in her report of 4 December 2005 and he wrote about it in his Statutory Declaration dated 2 October 2008. It is something that has been acknowledged by the health professionals and counsellors who have seen him as part of his problems and difficulties. He had voluntarily attended counselling at Foundation House in 2005. Many of the sentences imposed upon him have been framed around requirements that he attend substance abuse programmes or services as part of the Community Based Orders, which he has agreed to abide by. Consistently over the years, Mr Chung has found that he has not been able to comply with them and has returned to his drug abuse and crime to support his habit.
B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).”
B.1.Consideration
The offences that Mr Chung committed on 1 and 14 October 2009 showed a worrying escalation in the sense that he resorted to carrying a weapon. In the past, he had carried a weapon on only one other occasion. While the substances that he placed in the syringes were harmless, the people he threatened with the syringes were not to know that. Quite apart from the fluids they contained, the syringes themselves could be used as weapons. Even if we accept that Mr Chung now states that he did not intend to use them as weapons, he was affected by drugs at the time and he would not necessarily have acted consistently with his intention.
The three Armed Robbery offences involving his use of syringes were committed eight years ago but Mr Chung’s incarceration and subsequent immigration detention have meant that he has not been in a position to engage in such behaviour. At the same time, we have no evidence that Mr Chung has committed any disciplinary offences either in prison or in immigration detention. That points to his responding to the structured life that is gaol. Apart from courses in 2005, there is no evidence that he has undertaken rehabilitation or other courses that will assist him to cope with the stresses and strains of daily life or to come to terms with his feelings of abandonment that he has carried since a small child. Equally, there is no evidence that he has abused drugs in prison. That may be because he is on a program of substitution for illicit drugs and is being helped to find the self-control needed to refuse illicit drugs or that he does not have the money or means to acquire them. We have no evidence on which we are satisfied that the reason is one thing or another.
Mr Chung sees himself as having missed out on the opportunities that parole would have presented had he not been placed in immigration detention at the conclusion of his sentence. Instead of having the opportunity to show that he had changed his ways, he was placed in immigration detention. We agree that he has not had those opportunities but he has had earlier opportunities. Those opportunities become apparent when we look at the reports of the psychologists and counsellors. We have set them out at some length above and have put them in date order. In addition, we have included them in the table of offences showing approximately when they were written vis à vis his court appearances and, where available, the dates of his offences.
Mr Chung’s most recent offences were committed in October 2009 and he was sentenced for them in 2010 and 2011. In 2005, Dr Bull recommended a comprehensive course of treatment. Unfortunately, on the material that we have been given, the records of the sentences imposed from 16 September 2005 do not appear to contain such a condition. That absence must, though, be seen in the context of the sentences imposed on 17 September 1998 and 7 June 2004 when the Melbourne Magistrates’ Court did, as part of the imposition of a Community Based Order, require Mr Chung to attend Drug and Safety programmes and to submit to assessment and treatment for alcohol/drug addiction and to submit to medical/psychological/psychiatric assessment. On both occasions, he breached the Community Based Orders. He went on to commit further offences and to resume his former lifestyle. Mr Chung had those early opportunities to take advantage of treatment programmes but, for whatever reason, he did not comply.
Looking at matters in his personal life, we find that a change in his personal arrangements made no difference to Mr Chung’s offending behaviour. In the period during which he and his girlfriend were together, we do not have the dates on which he committed the offences. He did, however, have four court appearances from 11 January 1999 to 27 November 2001 with another on 25 July 2001. Apart from three breaches of his Community Based Orders, Mr Chung also faced charges of trafficking heroin on each of those five occasions together with other related charges. We accept that his memory and that of Ms Leonarda Chung is that he stayed out of trouble while he and his girlfriend were together but it seems unlikely even allowing for the fact that there may be a delay between committing an offence, being charged and pleading guilty and being sentenced.
Ms Leonarda Chung has proposed that her brother live with her and her husband in their home. He has previously lived with them for a short period but he found it difficult as he had to go back to Richmond to attend the services in order to meet the terms of his parole. Mr Chung said that it had been difficult for him to meet the terms of his parole at the time. The Neighbourhood Justice Centre had given him tickets to travel to his appointments but he had no income and did not want to be a burden on his sister. Sometimes, he would wake up and not feel like going to his appointments and sometimes he felt depressed. He tried to get a medical certificate to cover his absence but he could not get it and found that he had breached the conditions of his Community Based Order.
His sister, Ms Leonarda Chung, has been available to help him and she is very hopeful of finding him employment with her employer. She also said that her husband would engage him from time to time to assist him with his work. We accept that Mr Chung did work in the laundry for eighteen months or so when he was with his former girlfriend. That is to his credit but he was not able to maintain his subsequent employment with the logistics company. Mr Chung said that he did not maintain it because of an injury to his hand but there is also evidence that he was suffering from paranoid delusional thoughts at the time and he thought people were talking about him. Whatever the reason, Mr Chung does not have a history of consistently either gaining or maintaining employment.
Mr Chung’s history counts against his being able to settle into a life where he does not use drugs. He has been given opportunities to attend rehabilitation but has not been able to follow through on those opportunities. We accept that he may have wanted to turn his life around when he was with his girlfriend, but he was not able to maintain any of the progress that he made while they were together. Ms Lechner, Ms Groenen, Dr Cidoni, Ms Meehan and Dr Bull have all seen a path for Mr Chung to take towards rehabilitation but, when he has been set upon it by either the courts or by Foundation House, he has found himself unable to take the steps necessary to progress along it to rehabilitation. He has been unable to move himself away from the influences of those who take drugs, those who use drugs and those who deal in drugs. On the basis of his evidence, we find that he stopped taking methadone because he went back to taking heroin and he could not use both. He attended only two sessions at Foundation House. The risk that he will find himself equally unable to take those steps if he were permitted to remain in Australia and to undergo another rehabilitation program is very high. The reasons for his not being able to do so may lie in his lack of education or they may lie in his lack of work experience leading to his not having learned the rhythm of working as part of the rhythm of life without the need to commit crimes. Whatever the reason for his doing so, that reason does not detract from our conclusion that the risk of his failing and of returning to his former patterns of drug use and offending behaviour to support himself and a drug habit is high.
Judge Parsons alluded to Mr Chung’s not intending to harm his victims but to his victims not being aware of what is in his mind. Should Mr Chung commit further offences of the sort for which he has been convicted, members of the Australian community are at risk of being injured. He has agreed that he is drug-affected when he commits crimes. He had a knife on an earlier occasion but he armed himself with syringes when carrying out the last two sets of offences. Regardless of whether the liquid they contained was harmless and regardless of whether they had previously been used to inject a person, syringes can be used as weapons and would have been regarded as posing a serious threat to the victims. The risk to those such as console attendants and convenience store staff, who are frequently seen as “soft targets” by offenders, is increased by Mr Chung’s use of syringes to threaten them when in a drug-affected state.
C. Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[51] In considering the best interests of the child, paragraph 13.2(4) provides:
[51] Direction No. 65 at [13.2(2)]
“In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
C.1 Consideration
Mr Chung does not have any children. His sister, Leonarda, and her husband do not have any children. Ms Carla Chung and her husband do have a son and a daughter aged approximately eight and seven years. Given his periods of imprisonment and detention, Mr Chung has had very little contact with them. Despite that and despite difficulties he has had with his uncle leading to his staying away from his grandmother’s home, we accept that family is important to Mr Chung. His personal difficulties have been counter-productive of his staying with his sister, Ms Leonarda Chung and her husband but, despite that, he sees his extended family, including its youngest members, as an essential part of his life.
D. Expectations of the Australian community
Paragraph 13.3(1) states:
“The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable 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 not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
D.1 How are those expectations determined?
Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in any sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.[52]
[52] The reasons for this view are set out in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72]
D.2 Consideration
Paragraph 13.3(1) of the Direction states at the outset that the Australian community expects non-citizens to obey Australia’s laws while in Australia. It makes no reference to the different challenges which may face non-citizens and which may lead them to fail to meet that expectation. That is not to say that those challenges will not be relevant in considering what the Australian community would expect in an individual case.
In the past, Victorian Legal Aid and the Human Rights & Civil Law Service have put forward the difficulties facing Mr Chung in submissions made on his behalf. Reference is made to his being rejected by his biological parents and subsequently witnessing traumatic events in Timor-Leste. These were compounded when he came to Australia where he had very little English, was sexually molested at a relatively young age and lived in community housing where he was exposed to drug taking and drug trafficking. His grandmother offered him a home but his uncle was also a constant presence in that home and he feared his uncle’s severe physical reprimands. His sister, Ms Leonarda Chung, came to Melbourne in the year following his arrival but she was busy caring for her sister and cousins. Mr Chung did not obtain appropriate treatment for his mental health issues. His offences are in the context of his ongoing addiction and mental health issues. His mental health issues are exacerbated by the fact that, in Victoria if not in Australia, he is the only one of the Timorese people who came to Australia not to receive a permanent visa. He feels a sense of shame about this.
Accepting that all of these things are true, Mr Chung’s situation can be seen from another point of view. That point of view starts from the position that Mr Chung was given an opportunity to start life again in Australia safe from the traumas he witnessed in Timor‑Leste. Starting a new life after such trauma is not an easy thing to do. It involves so much more than simply being removed from the situation of trauma. Melbourne was a new and strange place to Mr Chung. He was scared to go home and to be at home despite the presence of his beloved grandmother. Mr Chung did not have the maturity, skills or support to deal with his situation. He found solace in drugs and then turned to crime to fund his habit.
We also accept that Ms Leonarda Chung believes that her brother has grown up now and that he only turned to drugs in order to feel “normal”. On the basis of her evidence, we find that there have been some essential features that have changed and that will make it easier for her brother to change his past habits. Communication amongst family members has improved. Her situation has also changed. When she first came to Australia, she was caring for her other sister and her cousins but she is now married and can give her brother better support. She wants the best for him and will take him into her home as she has done in the past.
Mr Chung reciprocates his sister’s feelings for him. What concerns us, however, is his feelings and her care and efforts have not been enough in the past to keep him free from addiction and the criminal conduct in which he has engaged to sustain it. There have been no reports of incidents since he has been incarcerated or in immigration detention. They can be difficult environments in which to live but they also represent a structured environment in which choices are limited by the constraints imposed upon prisoners and detainees. The world beyond prison and the detention centre is a world in which constraints are imposed by the law but they are not constraints that are rigidly maintained and their breach immediately recorded by authority figures. It is a world in which consequences may not follow immediately upon the heels of breaches of the constraints. People must make themselves aware of those constraints and of consequences of any breach of them and decide whether to act in accordance with the constraints or to risk the consequences. That is a decision that requires maturity and the moral strength to ignore a life that takes from others and finds escape from difficulties in drugs and to choose what might seem harder options of rehabilitation and, ultimately, work.
The Australian community might well have accepted petty crime at that stage had he tried to take advantage of the assistance that was given to him. He was removed from his family and started at a fresh school. That did not work for him. The fact that it did not work for him might have been understandable had he taken advantage of the drug and rehabilitation program offered to him in 1998. That was a condition of the Community Based Order imposed on 17 September 1998. He was then 18 years of age and had already been before the Melbourne Children’s Court on four occasions in relation to some 19 charges. On each occasion, the charges were found to have been proved but no conviction was imposed. Each of those four occasions was an opportunity offered to Mr Chung to reform his life. His first convictions came in March 1998 in the Melbourne Magistrates’ Court when he was 17 years of age. A Community Based Order was imposed to perform unpaid community work but his next set of convictions in September 1998 required him to attend a drug and alcohol programme. He was in breach of the order.
Mr Chung has blamed himself and felt shame about the sexual abuse that he spoke of. He felt that he needed help but he told no one about it until he told his sister, Ms Leonarda Chung, about it and later, by at least 2005, his legal advisers and health professionals. The first would seem to have been Dr Bull who was asked to comment on the link between the sexual abuse and his offending in 2005. That is a date that comes after the Community Based Orders were imposed on him but those orders were the opportunities for him to explore what was at the root cause of his offending whether it was the trauma, sexual abuse, home situation or some other cause. By not taking advantage of them, he has missed opportunities to try to work out what ailed him and what could be done to help him to recover from his addiction. Instead, he attended only two sessions at Foundation House and has failed to answer bail on a number of occasions. Even if he could not bring himself to talk about the sexual abuse, the Australian community would have expected him to have complied with the Community Based Orders.
Other considerations
The five other considerations are summarised in paragraph 14(1):
“a) International non-refoulement obligations;
b)Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.”
A. Non-refoulement obligation
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that Mr Chung is at risk of harm of the sort that raises Australia’s non‑refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol i.e. the Refugees Convention. Therefore, we find that this consideration does not arise on the evidence in this case.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”
B.1 Consideration
Mr Chung came to Australia when he was 14 years of age. By the time that he was 15 years of age, he had already come to police attention and had appeared before the Melbourne Children’s Court. There were three more appearances in the Melbourne Children’s Court on a variety of charges before he turned 18 years of age. The charges continued in the Melbourne Magistrates’ Court when he was still 17 and then continued.
Apart from his mother and some siblings who still live in Timor-Leste, most of Mr Chung’s family live in Australia. All are permanent residents in Australia if not Australian citizens. His great grandmother is no longer alive but his grandmother remains a focus for him. His sister, Ms Leonarda Chung, clearly cares for him and is devoted to helping him. Should the decision to cancel his visa not be revoked, she will be affected by the absence of her brother.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.”
C.1 Consideration
Ms Leonarda Chung’s husband is an owner driver engaged in the transport industry. From time to time, he requires assistance. Ms Leonarda Chung spoke of being able to get her brother a job with her employer. He would be able to work in the warehouse packaging the products or in the manufacturing side making candles, moisturisers, soap, conditioners and the like. As important as every job is to the infrastructure that supports the Australian community, Mr Chung’s failure to be able to take up that job would not compromise the delivery of a major project or the delivery of an important service in Australia.
D. Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
D.1 Consideration
We do not have any evidence regarding the effect of a decision not to revoke the cancellation of his visa on the victims of his crime. Judge Parsons referred to his having a victim impact statement before him when he sentenced Mr Chung on the last occasion but gave no details of what the impact upon that victim had been. Even if he had, it may not have assisted us for he did so in the context of the impact of the crime and did not consider it, as we must, in the context of the impact of the non-revocation of the decision to cancel Mr Chung’s visa.
Paragraph 14(1)(d) summarises the consideration as “Impact on victims” but the text of paragraph 14.4(1) is more expansive and includes the impact of a decision not to revoke on “members of the Australian community, including victims of the non-citizen’s criminal behaviour…” and of their families and so on. Mr Chung’s family and friends are equally members of the Australian community. The effect of non-revocation is also considered in the context of paragraph 14.2(1) of Direction No. 65 and we refer to [84] of our reasons above.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.”
E.1 Consideration
We accept his evidence and that of his sister that Mr Chung has no particular ties with anyone in Timor-Leste. His mother continues to live there but he has not seen her since he left for Australia and has no particular contact with her. He continues to suffer from feelings of having been abandoned by her. Whether there is any room for reconciliation is unknown to us. She has been very ill and spent time in hospital. Another sister, who resides in Australia, has travelled to Timor-Leste and spent some time caring for her. It would seem that Mr Chung’s mother’s health would not permit her to care for her son or to watch out for him even if she otherwise had the ability and wish to do that.
We have been given evidence regarding the mental health facilities in Timor-Leste and accept that those facilities are not as readily available or of the quality as found in Australia. Mr Chung’s opportunities to obtain help from them were he to return to live in Timor-Leste would be diminished. He would be faced with trying to obtain access to them without being able to expect that there would be any family support for him while he did so. The absence of family support would also present a challenge for him in caring for his physical health and particularly his Hepatitis C. Given that he left Timor-Leste when he was 14 years of age, it could be expected that any network of friends that he might have had would no longer exist for him. He would have to rebuild those networks. That would be difficult for him just as it was when he came to Australia. Timor-Leste will have all the strangeness of a new country just as Melbourne and Australia did when he arrived in 1994. When Mr Chung left Timor-Leste, he spoke Tetum and Bahasa Indonesia. He may have forgotten some of that language since he has been speaking English in Australia but there is nothing to suggest that he would not regain his skills in Tetum and Bahasa Indonesia if he had to.
Conclusion
Having regard to all of these matters, we find that the decision of the delegate of the Minister should be affirmed. In reaching that decision, we acknowledge that Mr Chung has found life very difficult. His feelings of being abandoned as a child by his mother in Timor‑Leste have influenced his life in an unfortunate way. He does not seem to have been able to move from it even though his sister, who was similarly given to her grandmother for care, has been able to find her own sense of self and place in the world. Mr Chung has not and he has regularly sought to escape the difficulties that he has faced - and they have not been insignificant – in drugs. He has not been able to overcome those difficulties.
Although there is no evidence before us to suggest that he has committed any disciplinary offences since his incarceration and immigration detention, he has not been re-tested in the community where he has to make choices and decide a course of action for himself. When opportunities were presented in the past to Mr Chung to take himself out of his drug habit and to place himself on a better path, it has made no difference. We agree that he has not had the opportunity on this last occasion to show what he could do because he has not been able to be placed on parole. We have concluded, however, that his past record of convictions and breaches of bail and of Community Based Orders means that there would be a significant risk of his breaching his parole. There would be too great a risk of his re‑offending and returning to drug abuse and, in doing so, harming other members of the Australian community.
We acknowledge that Mr Chung’s family who are in Australia, and particularly his sister, Leonarda, will be devastated by our decision. We acknowledge that life will be hard for Mr Chung in Timor-Leste. At the heart of the policy underpinning s 501CA(4), however, is the protection of the Australian community. Mr Chung’s behaviour since his arrival has led to repeated breaches of the law and threatening behaviour against other members of the community. He has been given opportunities to rehabilitate himself but has not found a way to take advantage of those opportunities in the past. The risk of his repeating the criminal conduct that has led to the cancellation of his visa and the consequent risk that he will bring harm to other members of the Australian community, is too great to revoke the cancellation of his visa.
DECISION
For the reasons we have given, we affirm the decision of a delegate of the Minister dated 30 June 2016 not to revoke the decision made on 3 June 2015 to cancel Mr Chung’s Bridging E (Class WE) (Subclass 050) Visa.
I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Senior Member A Nikolić AM CSC and Member K Parker
Signed: ………....[sgd].......................................
Personal Assistant
Dates of Hearing 24 January 2017
Date of Decision 16 June 2017
For the Applicant Ms Leonarda Chung
Solicitor for the Respondent Mr Adam Cunynghame
Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Remedies
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