CONG TINH NGUYEN And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 861
•3 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 861
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3498
GENERAL ADMINISTRATIVE DIVISION ) Re CONG TINH NGUYEN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date3 November 2010
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s visa not be exercised.
..............................................
R W Dunne
(Senior Member)
CATCHWORDS
IMMIGRATION – Class BF Transitional (Permanent) visa – applicant residing in Australia since 1980 – cancellation of visa – discretion to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction No. 41 – primary and other considerations – serious offences – risk of recidivism – prospects of rehabilitation – decision under review set aside.
Migration Act 1958 (Cth), ss 501(2), 501(6)(a), 501(7)(c), 501(2)
Ministerial Direction No. 41
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Shi v Migration Agents’ Registration Board (2008) 235 CLR 286
Puafisi and Minister for Immigration and Citizenship [2009] AATA 689
Tucker and Minister for Immigration and Citizenship [2010] AATA 559REASONS FOR DECISION
3 November 2010 Senior Member R W Dunne Introduction
1. The applicant, Cong Tinh Nguyen, held a Class BF Transitional (Permanent) visa. A delegate of the Minister (“respondent”) decided to cancel his visa on the grounds that he had not satisfied him that he passed the character test for the purposes of s 501 of the Migration Act 1958 (Cth) (“Act”). Mr Nguyen has applied to this Tribunal for review of the delegate’s decision.
2. At the hearing, Ms Jane McGrath appeared on behalf of the applicant and Mr Paul d’Assumpcao appeared on behalf of the respondent. The G documents lodged pursuant to s 501G of the Act were admitted into evidence as Exhibit A1, together with the following exhibits:
·applicant’s statement dated 12 October 2010 (Exhibit A2);
·order for release on parole from Department of Correctional Services dated 17 August 2010 (Exhibit A3);
·witness statement of applicant’s sister, Thi Ngoc Quy Nguyen, dated 29 September 2010 (Exhibit A4);
·Certificate of Australian Citizenship of Thi Ngoc Quy Nguyen dated 19 July 1989 and cover page of her Australian passport dated 7 April 2000 (Exhibit A5);
·greeting cards and school reports of applicant’s son, Tuanny Nguyen (Exhibit A6);
·witness statement of applicant’s son, Tony Nguyen, dated 29 September 2010 (Exhibit A7);
·witness statement of applicant’s son, Tuanny Nguyen, dated 29 September 2010 (Exhibit A8);
·report of Ms Naomi Martin, Psychologist, dated 14 September 2010, together with briefing letter sent on 2 September 2010 (Exhibit A9);
·extracts from additional documents submitted for the applicant (Exhibit A10);
·additional documents provided to Dr Ellis and Dr Asquith by respondent under cover of briefing letter dated 23 September 2010 (Exhibit R1);
·report of Dr Merrylyn Asquith, Child and Family Consultant, dated 1 October 2010 (Exhibit R2);
·briefing letter from Australian Government Solicitor to Dr Asquith dated 20 September 2010, together with Annexures (Exhibit R3);
·report dated 6 October 2010 and supplementary report dated 9 October 2010 from Dr Andrew Ellis, Forensic Psychiatrist (Exhibit R4);
·summing up to the jury by His Honour Judge Wilson in the District Court on 26 November 1996 (Exhibit R5);
·letter from the applicant to the Prisoner Assessment Committee, Yatala Labour Prison, dated 19 December 1998 (Exhibit R6); and
·further letter from the applicant to the Prisoner Assessment Committee, Yatala Labour Prison, dated 2 March 1999 (Exhibit R7).
Issue before the Tribunal
3. Under s 501(6)(a) of the Act, a person does not pass the character test if he or she has a substantial criminal record, and under s 501(7)(c) is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more. The applicant was sentenced to imprisonment for terms exceeding this period on 23 December 1996 and 22 November 2002. He concedes that he does not pass the character test. The only issue before me is whether I should exercise the discretion conferred by s 501(2) of the Act to cancel his visa.
Legislation
4. Section 501(2) of the Act provides as follows:
“(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
5. Section 501(6)(a) and s 501(7)(c) provide as follows:
“(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7))…
(7)For the purposes of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more.…”
6. The Tribunal is granted jurisdiction in the present matter under s 500(1)(b) of the Act. In exercising that jurisdiction, I am bound by the Minister’s Direction made under s 499 of the Act, Direction [No. 41] – Visa Refusal and Cancellation under section 501 (“Direction”). The Direction provides for the manner of exercise of the Tribunal’s function under the Act.
Background
7. The material facts are not in dispute and are drawn from the Statements of Facts, Issues and Contentions of the applicant and the respondent. Mr Nguyen was born in Saigon, Vietnam on 17 June 1967. His mother died in Vietnam in 1975 and his father died in Australia in about the late 1990s. He has one sibling, a sister, Thi Ngoc Quy Nguyen. She was born in Saigon on 1 August 1955 and is an Australian citizen. Mr Nguyen arrived in Australia with his father and sister on 14 November 1980. He has remained in Australia without interruption ever since. After their arrival, the family settled in Sydney, but eventually the sister moved to Adelaide to live. Her husband is Phan Van Son. She met him in Vietnam when she went there on holidays in 1999. They formed a relationship and she sponsored him in relation to a partner visa. He arrived in Australia in 2007.
8. Mr Nguyen left home at about 15 or 16 years of age. He had minimal education in Vietnam and virtually no education in Australia, apart from some intensive English classes. It appears he drifted into the company of other disenfranchised, young, Vietnamese men and became involved in drug use and criminal activity. He began offending in New South Wales in 1986 and in South Australia in 1994. The following is a summary of the offences, prepared by Mr d’Assumpcao, which was not challenged by Ms McGrath.
NB. Bolded words in the 'Outcome' column denotes a sentence of imprisonment
No. Date of Offence Date of Conviction Offence details Court/authority Outcome New South Wales - Road Traffic Authority 1.
7 Nov 1987
-
Not wear seat belt
Road Traffic Authority
$50
2.
7 Nov 1987
-
Exceed speed limit by more than 30 km/h
Road Traffic Authority
$100
3.
2 April 1988
-
Demerit points cancellation of unrestricted (Class 1a) to commence on 02-04-1988, for the offence(s) of 07-11-1987, 07-11-1987, 11-04-1986 (see item 6)
Road Traffic Authority
-
4.
28 Apr 1990
-
Unlicensed driver
Road Traffic Authority
$75
5.
5 Jan 1993
-
Exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle (camera detected)
Road Traffic Authority
$154
New South Wales Court Related Matters 6.
27 Jul 1986
11 Apr 1986
Disobey traffic lights
C'Reagh Street Court
-
7.
4 Aug 1986
13 Aug 1986
Illegal use of conveyance [i.e. motor vehicle]
Fairfield Local Court
Not before court
8.
8 Aug 1986
21 Aug 1986
Goods in custody
Campsie Local Court
3 counts - on each charge - not before court
9.
8 Aug 1986
21 Aug 1986
Stealing (s501)
Campsie Local Court
3 counts - on each charge - not before court
10.
8 Aug 1986
21 Aug 1986
Attempt steal
Campsie Local Court
3 counts - on each charge - not before court
11.
3 Sep 1986
10 Sep 1986
Manner dangerous
Fairfield Local Court
Not before court
12.
11 Sep 1986
15 Jun 1987
Possess firearm without shooters [sic] licence (3 counts)
Fairfield Local Court
On each count FD $200
13.
7 Oct 1988
14 Nov 1989
Fail to appear
Campsie Local Court
FD $400
14.
7 Oct 1988
14 Nov 1989
Aid & abet stealing s501
Campsie Local Court
FD $750 Comp $50
15.
7 Oct 1988
14 Nov 1989
Aid & abet stealing s501 (2 counts)
Campsie Local Court
On each count: Recog s558 Self $500 GB 2 years Comp $80
16.
26 Feb 1989
27 Feb 1989
Offensive behaviour
Fairfield Local Court
FD $150
17.
8 Aug 1990
22 Aug 1990
Supply prohibited drug
Fairfield Local Court
6 mths HL [Hard labour?] from 220890 [22 Aug 1990]
18.
8 Aug 1990
22 Aug 1990
Possess prohibited drug
Fairfield Local Court
ROC
19.
8 Aug 1990
22 Aug 1990
Resist arrest
Fairfield Local Court
$80
20.
5 Sep 1991
6 Sep 1991
BE&S [Break, Enter & Steal]
Fairfield Local Court
Items 20 & 21 - On each charge 9 mths minimum term release date 040692 [4 June 1992] additional term 3 months
21.
5 Sep 1991
6 Sep 1991
Possess housebreaking implements
Fairfield Local Court
Items 20 & 21 - On each charge 9 mths minimum term release date 040692 [4 June 1992] additional term 3 months
22.
7 Mar 1993
5 May 1993
Malicious damage
Fairfield Local Court
FD $500 Pay comp $297
23.
7 Mar 1993
5 May 1993
Drive whilst cancelled
Fairfield Local Court
FD $250 Lic disq 6 mths
24.
18 Jan 1994
13 Apr 1994
Possn proh drug
Fairfield Local Court
This item and item 25 and 26: On each charge NBC WTI
25.
18 Jan 1994
13 Apr 1994
Supply proh drug
Fairfield Local Court
Items 24, 25 and 26: On each charge NBC WTI
26.
18 Jan 1994
13 Apr 1994
Offer to supply proh drug
Fairfield Local Court
Items 24, 25 and 26: On each charge NBC WTI
27.
25 Aug 2000
14 Dec 2000
Supply proh drug
Liverpool Local Court
Bond s9: 2 yrs
28.
25 Aug 2000
14 Dec 2000
Possess proh drug
Liverpool Local Court
Bond s9: 2 years (DTBD)
29.
25 Aug 2000
14 Dec 2000
Fail to appear - first instance warrant (first instance warrant - 28681373)
Liverpool Local Court
Rising of the court
South Australian Court Related Matters 30.
26 Dec 1994
13 Apr 1995
Building breaking and felony
Elizabeth Magistrates' Court (EMC)
Convicted - Imprisonment 9 months - suspended sentence bond - length of bond 12 months
31.
26 Dec 1994
23 Dec 1996
Building breaking and felony
District Court (DC)
Consolidated
32.
26 Dec 1994
1 Jun 1995
No licence
EMC
Convicted - $301
33.
17 Feb 1995
17 Feb 1995
Estreatment of bail (2 counts)
EMC
Found proved - $50 estreatment
34.
23 Feb 1995
13 Nov 1995
Larceny
Adelaide Magistrates Court (AMC)
Without conviction - $277
35.
11 Jun 1995
-
Possessing (nominate controlled substance) (2 counts)
DC
Imprisonment until the rising of the court
36.
23 Sep 1995
23 Dec 1996
Wounding with intent to do grievous bodily harm
DC
Imprisonment - 5 years
37.
9 Dec 1996
23 Dec 1996
Application for enforcement of a breached bond
DC
Found proved - no further penalty
38.
-
23 Dec 1996
Building breaking and felony - Breached bond order
DC
Suspension revoked - Imprisonment 9 months - The sentence of nine months imprisonment to be served cumulatively on count 1 (item 30)
39.
8 Jan 1996
2 Jul 1996
No licence
Port Adelaide Magistrates' Court (PAMC)
Convicted - $340
40.
9 Jan 1996
19 Dec 1996
Drive under disqualification
PAMC
Convicted - Discharged without penalty
41.
9 Jan 1996
19 Dec 1996
Fail to truly answer
PAMC
Convicted - $237
42.
9 Jan 1996
19 Dec 1996
Due care
PAMC
Convicted - $128
43.
9 Jan 1996
19 Dec 1996
Damaging property
PAMC
Convicted $421
44.
12 Jan 1996
17 Mar 1997
Break and enter building and commit offence
PAMC
Convicted - Imprisonment 11 months
45.
28 Jan 1996
19 Dec 1996
Possessing (nominate controlled substance)
PAMC
Convicted on this count and on item 46 - $225
46.
28 Jan 1996
19 Dec 1996
Possess equipment to administer cannabis
PAMC
Convicted - see item 45
47.
11 Feb 1996
27 Aug 1996
No licence
PAMC
Convicted - $310
48.
1 Mar 1996
18 Mar 1997
Drive or use motor vehicle without consent
PAMC
Convicted - $143
49.
1 Mar 1996
18 Mar 1997
Unlawful possession
PAMC
Convicted - $51
50.
1 Mar 1996
19 Dec 1996
Due care
PAMC
Convicted on this item and item 20- $265
51.
1 Mar 1996
19 Dec 1996
No licence
PAMC
Convicted - see item 23
52.
20 Jul 1996
20 Jan 1997
No licence
PAMC
Convicted - $356
53.
9 Aug 1996
11 Mar 1997
Larceny
PAMC
Convicted - Discharged without penalty
54.
5 Sep 1996
11 Mar 1997
No licence
PAMC
Convicted - $289
55.
30 Oct 1996
30 Jun 1997
Break and enter building and commit offence
PAMC
Convicted on this item and on item 56 - Imprisonment 12 months - to commence at the expiration of the present head sentence of 5 years and 9 months (backdated to 23.08.96)
56.
30 Oct 1996
30 Jun 1997
Common assault on person other than family member
PAMC
Convicted - see item 55
57.
9 Dec 1996
23 Dec 1996
Application for enforcement of a breached bond
DC
Consolidated
58.
-
24 Aug 2000
Extradition order
AMC
That for the purpose of being returned to the Local Court of Fairfield, N.S.W., the defendant be delivered into the custody of Detective Constable Steven Nealon, a police officer for the said State of New South Wales
59.
8 Aug 2001
22 Nov 2002
Assault with intent to rob whilst armed
DC
Convicted on this item and items 60-63 - Imprisonment 13 years and 6 months
60.
8 Aug 2001
22 Nov 2002
Unlawful wounding
DC
Convicted - see item 59
61.
8 Aug 2001
22 Nov 2002
Unlawful wounding
DC
Convicted - see item 59
62.
9 Aug 2001
22 Nov 2002
Armed robbery
DC
Convicted - see item 59
63.
9 Aug 2001
22 Nov 2002
Armed robbery
DC
Convicted - see item 59
9. On 11 November 2009, Mr Nguyen was advised in writing by the respondent that consideration was being given to cancelling his visa. The letter was sent while he was serving a term of imprisonment in South Australia in relation to three counts of armed robbery and two counts of unlawful wounding. On 23 August 2010, he was released from prison on parole. However, on account of his visa cancellation, he was (pursuant to s 189(1) of the Act) placed in immigration detention and flown to Villawood Immigration Detention Facility in New South Wales, where he is presently situated.
10. Mr Nguyen has four children who are all Australian citizens. The children are as follows:
(a) Cherron Beresford, a boy born on 23 August 1985. Cherron’s mother died and he was raised by his maternal grandmother.
(b) Kimberley Nguyen, a girl born on 16 September 1989. Kimberley’s mother is Christine Holloway. Kimberley has been raised by her mother and maternal grandmother.
(c) Tony Nguyen, a boy born on 5 September 1993. Tony’s mother is Pham Thi Thuy. Tony has been raised by the applicant’s sister and has been abandoned by his mother.
(d) Tuanny Nguyen, a boy born on 9 June 1997. Tuanny’s mother is also Pham Thi Thuy. Tuanny has been abandoned by his mother and has been raised by the applicant’s sister.
11. The applicant has an ongoing relationship with his sons, Tony and Tuanny. They live with his sister in Adelaide and have done so for virtually all of their lives. He has had minimal contact with his daughter, Kimberley, other than meeting her in 1997. He has not been in contact with Cherron as he has been unable to locate him.
Evidence
Evidence of the Applicant
12. Mr Nguyen was referred to his witness statement (Exhibit A2), the contents of which had been read to him by a Vietnamese interpreter and which he confirmed was true and correct. The following relevant extracts have been taken from the witness statement:
“In 1986 I was charged with offences in New South Wales associated with the use of a motor vehicle. This was my first offence. I was associating with people that were a bit like me, young Vietnamese men who were unable to succeed at school or in securing good work. I was riding in a car that someone else had stolen, and we were caught by the police.
With my group of friends, I started to use marijuana fairly frequently and later on I started to use heroin. I knew that my life was going downhill and quite a few times I decided that I would like to turn my life around and change my situation. I thought about coming to Adelaide to be with my sister. However, by this stage I was addicted to heroin and it was very difficult for me then to make life changes because I was an addict.
I can’t remember now exactly when I first started to use heroin. It was by about 1989 or 1990 that I was an habitual user, using heroin every day.
I met the mother of my two infant sons, Pham Thuy (‘Thuy’), in around the early 1990s. I can’t remember exactly when. Thuy and I had a close and loving relationship. However, the relationship was quite destructive for both of us as we both suffered from addiction problems.
I continued in my relationship with Thuy for a number of years. She came to visit me in gaol on a number of occasions. I considered her to be my de facto partner at the time. However, as time has gone by, the relationship has ceased and I have not seen or spoken to her now for many years.
Thuy has shown no interest in the boys at all. Neither of them have a relationship with her. As far as I know, she does not call them for their birthdays, send them gifts or show any interest in their welfare or schooling.
My sons are very fortunate to have been raised by my sister, Quy, who is a good person.
I know that Quy has raised my boys expecting that we will all live together when I am released from gaol. She used to bring them up to see me when she was well but since she had an accident she has not been able to travel because of back problems. Nevertheless, I still speak to the children very frequently over the phone and try to send them gifts on their birthdays from money I have saved up in gaol.
While I have been in gaol there have been a few incidents.
On one occasion I was caught with a knife which I used for foot peeling.
On one occasion I was caught with a pornographic magazine.
On one occasion I was charged with fighting (it was an argument with another inmate in relation to milk).
In relation to drug testing and urine samples, I claim that I have not used unlawful drugs while in gaol on this occasion and that I am now clean.
On 12 April 2007 a urine sample was collected which indicated that buprenorphine was detected but that the other usual drugs, such as benzodiazepines, opiates, methadone, amphetamine, cannabinoids, tricylite antidepressants were not detected. I do not know the meaning of this result but I challenged the result because I knew that I had not used illicit drugs and I felt that the test was incorrect. I challenged the drug test and I understood that it was accepted by the authorities that the result may have been incorrect.
I am told by my lawyer that my case notes indicate that there was a suspect result in my drug test of April 2009. I was told that even though the test came back negative, the IMVS said it was not a drug free sample. This means that there was a suggestion that the urine was dilute and contained something that suggests it was not human. I say that I produced my own sample and did not swap it with that of an animal. I had not been using drugs. The urine may have been dilute because during the day I had been playing a card game with other inmates where you were required to drink water if you lost a hand. Perhaps this is why my urine was dilute. In any event, the prison authorities took no action in relation to this and I completely deny that this was a positive drug result.
I have used my time in gaol to get some skills and education. My English is good enough to work in employment in Australia, so long as I am not working in a job that requires high level written or communication skills. In gaol I have trained as a backhoe operator, have studied English and as a forklift operator. I have a licence for driving medium weight trucks. I believe that these are skills that I could usefully use when I am released.”
13. When examined about his drug use, Mr Nguyen said that he started the buprenorphine program when he first served his current sentence. He stopped the program in 2006 and was not on it in June 2010 when his parole report was completed (Exhibit R1, page 68).
14. He had undertaken a number of courses and programs whilst in prison. They included an alcohol and other drugs relapse prevention program in December 2009, a victim awareness program in September 2004, an anger management program in April 2003, an alcohol and other drugs (parts A and B) in February and March 2003 and an alcohol and other drugs relapse prevention program in July 2001. Those courses helped him to avoid the friends who had previously been involved in drugs and to avoid his use of drugs. He had also undertaken courses to help him learn skills that he might use in employment, if released. If he was released from detention, he would live with his sister and his sons. He would look for employment and then help his family, so that when the children grew up, they could “see the right way”.
15. Mr Nguyen’s parole conditions are due to expire in March 2018 and he knows that, if he breaches the conditions of his parole, he might have to go back to prison to serve the rest of his sentence. It is a condition of his parole that he must be supervised by a Community Corrections Officer and obey their instructions. He is prohibited from using narcotic or psychotropic drugs while on parole, unless they are prescribed. It is also a requirement of his parole that he undertakes counselling for substance abuse if directed to do so. It is also a condition that he not associate with certain people who are listed in the parole agreement and that he must have urine tests for drugs when his Correctional Services Officer requires it. He understands that the parole conditions are “very correct”.
16. Officers of the respondent met with Mr Nguyen on 1 May 1992 in relation to a possible criminal deportation that never proceeded. He has not been warned by the respondent that his criminal offending might involve a cancellation of his visa.
17. In cross examination by Mr d’Assumpcao about the circumstances of the unlawful wounding offence in 1995, Mr Nguyen said that he was being threatened by men involved in the episode and he drew a fishing knife that he had in his jeans pocket. When it was asserted that this was not his evidence before the District Court, Mr Nguyen could not remember what his evidence had been, but he had been convicted and jailed. He could remember that he went to court but he could not remember what his lawyer had asked him. He was a drug addict and had been using drugs at the time. When it was suggested that he had told the court that he had not been affected by drugs, he could not remember what he had said at that time. When questioned further about the episode, he could only vaguely remember what took place.
18. When cross examined about the interview with officers of the respondent on 1 May 1992, Mr Nguyen said he was told that, upon his release, he could gain citizenship after two years if he did not commit any further crimes. Nothing was said about deportation and he did not know, at the time, that he was being considered for deportation from Australia. When referred to the notes of the meeting on 1 May 1992 (Exhibit R3, Annexure D), Mr Nguyen acknowledged his signature in the notes, but could not remember much of what was said during the interview.
19. When cross examined about the offences of armed robbery and unlawful wounding on 8 August 2001, Mr Nguyen’s description of his possession of a screwdriver involved in the episode differed from the sentencing remarks in the District Court. There were other circumstances of Mr Nguyen’s involvement in the episode that differed from those outlined by the court. In the armed robbery that took place on 9 August 2001, the circumstances of the episode described by Mr Nguyen differed from those in the court’s sentencing remarks and in the Offender Plan prepared in the Department of Correctional Services (Exhibit R1, page 80). He could not remember what he had said in the court or to the Department of Correctional Services in January 2003. He said he had told the truth and his evidence did not involve a lie. He said he pleaded guilty to the court because he didn’t wish to name the other person involved. He admitted that, over the years, he had had a problem with alcohol. He drank, but he was not addicted to alcohol. He admitted that he had used heroin heavily over many years and also rohypnol. He had made attempts to stop using heroin several times, but could not remember how many times. When asked if he would take drugs again if he was released into the community, he said this time was different – his mind was stronger. Although others had gained access to drugs, he had not used drugs that were not prescribed by a doctor on the last occasion he was in prison. When further asked about drugs, he said he had not used any illicit or non-prescribed drugs in the last 10 years. He had had a problem with anger in the past, but the anger was no longer there. When it was suggested that he lacerated his finger as a result of his anger (Offender Plan, Exhibit R1, page 81), he acknowledged what had been suggested, but said his action had not been caused by any anger. It had been caused through cutting a frozen chicken. When asked whether he still had problems with anger, he said, “I think that it has reduced. I don’t have much anger nowadays.” He agreed that he would need help, when he was released from prison, to avoid any further relapse into drugs. He needed that help so that he could “be better” – attending programs, acquiring skills and job seeking.
20. When questioned about taking drugs in prison over the years, he said he had taken marijuana previously, but not during his most recent sentence. When asked by the Tribunal whether he had ever taken heroin in prison at any time, he said that he had not done so. The only non-prescribed drug he had taken when in prison was marijuana.
21. In re-examination by Ms McGrath about the interview with officers of the respondent on 1 May 1992, Mr Nguyen said that, when it was over, there had been handshakes. He had been told not to get into trouble and to wait two years to get citizenship. There had been no notice of any threat of deportation back to Vietnam. On 19 May 1992, he received the letter from the respondent telling him that a mistake had been made and he was not liable to deportation in any event. He acknowledged that part of his parole conditions required that he obey his parole officer. If that included obeying the officer about substance abuse counselling, he would be willing to obey his parole officer. He would also be willing to seek trauma counselling if it was necessary for him to do so.
Report and Evidence of Ms Naomi Martin
22. Ms McGrath had referred the applicant’s sister (Mrs Nguyen) to Ms Martin for an assessment. She met with her on 6 September 2010, together with her husband, Son, and her two nephews, Tony and Tuanny. By way of background, she had received Mrs Nguyen’s draft witness statement. As to her presentation and those of the nephews, Ms Martin’s report reads:
“Mrs Nguyen was markedly distressed throughout the interview. Indeed, her distress was palpable, to a level I have rarely seen in my 20 years of private practice.
The boys also displayed signs of significant distress. Tony was sweating profusely and Tuanny kept glancing at his aunt, and was extremely withdrawn. Whether this was partly due to his nature, the circumstances, anxiety and distress or a combination of these factors is difficult to conclude with any degree of certainty.
During the interview I noted the strong sense of connection between all members of this family, and all cooperated as much as they could within the limitations their distress imposed.”
23. As to the likely impact on Mrs Nguyen if the applicant was returned to Vietnam, Ms Martin’s report reads:
“Mrs Nguyen is clearly suffering with a number of psychological symptoms. Not only did I note her response to questions regarding the past, but she was extremely tearful for the majority of the interview. She stated she is forgetful and cannot sleep. She is very concerned about the boys’ welfare if their father is sent back to Vietnam. Her husband stated he is very concerned about her and her nephews.
Mrs Nguyen’s psychological state, quite apart from her depression and possible Posttraumatic Stress Disorder, is indicative of a person under considerable duress and in my opinion she would be at risk of deteriorating further if her brother is returned to Vietnam.
Whilst I have obviously not interviewed Mr Nguyen, I have to express my concerns about returning someone to their home country when they have suffered extensive trauma whilst a young child living there and during the escape from there. In addition, there are no other known family members there to provide support which he will clearly be needing. One would have to conclude that he too would be at risk psychologically.
I am assuming, when the family talked of being concerned, that this is something that Mrs Nguyen has also considered when she advised me that they only have each other. In my opinion Mrs Nguyen and the boys would be extraordinarily worried and anxious about Mr Nguyen’s welfare should he be sent back to Vietnam.”
24. As to the likely impact on Tony and Tuanny if the applicant was returned to Vietnam, including any adverse impact to them from their aunty’s response to such an outcome, Ms Martin’s report reads:
“Given the lack of any connection with their mother, particularly when considering she appears to have abandoned Tony and Tuanny, the need for an ongoing relationship with a present parent, with whom there appears to already be an established positive relationship, is in my opinion critical for the boys.
Whilst it is acknowledged that Mr Nguyen appears to not have been involved with the boys during their early years, the information suggests that in recent years he has consistently made contact with them and displayed an interest in their lives. This would suggest that he is remorseful and is keen to pursue a relationship with each of them.
Adolescence is an important but often tumultuous period of time in individuals’ lives, and given the information I have I would consider that Mr Nguyen’s presence and involvement in this stage of their development will be critical to how they manage their lives as they enter adulthood.
Mrs Nguyen has fulfilled the role of a caring adult/relative admirably, but as the boys are getting older their father will be an important figure in their lives, and will provide Mrs Nguyen with support in this role. Mrs Nguyen has been preparing Tony and Tuanny for their father’s release for some time now. Thus, despite what their father has done in the past, the boys’ relationship with him should be encouraged and fostered given its positive nature. This will provide both boys with a connection to a parent that will be critical to their psychological development, their social relationships, and their mental health.
If their father is returned to Vietnam one cannot rule out the possibility that this would create a sense of disillusionment for Tony and Tuanny. Such responses may pave the way for mental health issues and difficulty in developing trust in others and in establishing a life with purpose.”
25. In examination by Ms McGrath, Ms Martin emphasised the sense of strong closeness between all the members of Mrs Nguyen’s family. She has had a very important role at one level, but at another level the applicant appears to have also made phone calls and sent gifts. So, it has “worked from both sides”. The sending of cards by the applicant would be critical evidence that would support the fact that he has made that effort to have a connection with his boys, even though he is not physically present.
26. In cross examination by Mr d’Assumpcao, Ms Martin acknowledged that she had not been provided with other medical reports in relation to the applicant, including a psychological report prepared by Dr Jack White in 2001. However, she did not agree that what she had expressed, in certain respects, was more in the nature of a personal view as opposed to a professional view. She was not drawing conclusions about any psychological disorder that the applicant had. She agreed that the conclusions she had drawn in relation to the risk that he might suffer psychologically in returning to Vietnam were at a generalised level. In answer to questioning by the Tribunal, Ms Martin said she believed Mrs Nguyen’s stress was driven by a combination of factors. The significant trauma she described in Vietnam and in her escape from the country, the parenting role she had for her brother and the deep sense of responsibility she had for his wellbeing, and the chronic pain she was suffering from as a result of her accident, were all factors that caused her stress. As to the offences that had been committed by her brother, Mrs Nguyen would probably have a strong sense of not only responsibility, but a sense of guilt at some level that she has not been able to support him.
Report and Evidence of Dr Merrylyn Asquith
27. Mr d’Assumpcao for the respondent had asked Dr Asquith for her report, the purpose of which (as she said in the report) was to assist the Tribunal in determining the best interests of the applicant’s sons, Tony and Tuanny, in relation to his visa cancellation and his subsequent potential return to Vietnam. Tony and Tuanny had chosen not to be interviewed by Dr Asquith. She had been given numerous documents relating to the applicant (including those relating to his criminal offences), prisoner assessments and medical assessments, incident reports and parole reports.
28. As part of her evaluation, Dr Asquith was asked whether there was any evidence of any of the children being abused or neglected by the applicant in any way, or having suffered any physical or emotional trauma arising from the applicant’s conduct. Her report relevantly reads:
“….. Mr Nguyen would appear to have had little opportunity to establish and maintain a meaningful relationship with his two sons, and for that matter, his daughter Kimberley.
….. Mr Nguyen’s history of absence from his children is likely to have presented them with emotional trauma and neglect as a direct result of his inability to cease offending. Mr Nguyen’s apparent propensity to ameliorate his apparent inability to regulate his offending behaviour and psychological status, without the deregulating use of illicit drugs or excessive alcohol use remains of concern.
Nevertheless, it is this writer’s professional opinion that Tony and Tuanny’s best interests would be privileged by giving the children every opportunity available to them of strengthening their apparently relatively sound relationships with their father.”
29. As to the nature of the relationship between the applicant and each of the children, including whether there is any meaningful contact between the applicant and the children, Dr Asquith’s report reads:
“According to Mr Nguyen’s formal application for review, he and the children enjoyed visits twice a year while he was at Mobilong and spoke to each other twice a week. It also appeared that the child Tony had been considerably and detrimentally affected after spending time with his father prior to his father’s removal to Mobilong. Ms Nguyen reported Tony had become withdrawn, had isolated himself, and had not showered for four days. According to Ms Nguyen, Tony has been hopeful of his father’s presence and relationship for some years and has been severely impacted by the cancellation of Mr Nguyen’s visa and subsequent deportation to Vietnam. In the absence of further and more frequent meaningful relationship with his father, it is possible that Tony is developing avoidant strategies (as above) to assist him in withstanding what he may be experiencing as inescapable emotional pain. Tuanny too, appeared to be similarly affected, given that he was described by Ms Martin as losing concentration and losing his previous participation in learning to play the violin.
It is this writer’s professional opinion that the nature of the boys’ relationships with their father, although clearly challenged by their most unenviable circumstances, appears to be such that their emotional and psychological developmental needs may not be appropriately satisfactorily met if Mr Nguyen is removed from Australia.”
30. As to the likely effect of any separation from the applicant on each of the children, Dr Asquith’s report relevantly reads:
“It appeared from Ms Martin’s report that, notwithstanding Mr Nguyen’s various imprisonments over the years, each of these boys has developed strong feelings of attachment to him as a father. There appeared to be no indication that either of these children views Mr Nguyen as inherently dangerous, rejecting or unavailable in a psychological sense.
According to Ms Martin’s report, each of these children indicated their distress and concern regarding their aunt’s well being during the interview. It appeared likely that she and her husband have empathetically, emotionally, psychologically, physically, educationally, relationally and financially supported the children since they were infants. Therefore, very serious consideration should also be given to the protection and preservation of the seemingly secure attachment relationship between the subject children and their longstanding familial nurturers, their paternal aunt and her husband. This is also because, in the instance that Mr Nguyen is removed to Vietnam, it appears that Ms Nguyen would likely suffer extreme distress further to that she is currently experiencing. Such further distress could well impact her apparently already strained capacity to care for the boys, thereby compounding their almost certain increasingly severe distress at their father’s removal.
It is in this writer’s professional opinion that the effects of Mr Nguyen’s removal from Australia, therefore, are likely to be profoundly detrimental to the best interests of the subject children possibly throughout their life spans.”
31. As to whether there are any other people who fulfil a parental role for the children, Dr Asquith’s report reads:
“It appears that Ms Nguyen and her husband, to the very best of their ability have faithfully maintained the children in their care and, as far as they have been able, in relationship with their father for most of the children’s lives. To their great credit, each of these children remains in the school system. Tuanny was learning the violin. It appeared unclear whether or not this in fact parenting couple have sought or received government assistance to support the children.
It appears critical with regard to consideration of Tony and Tuanny’s best interests, to protect and preserve their carers’ parental roles without further aggravating what could be Ms Nguyen’s poor mental health and her very likely increased inability to cope emotionally and psychologically in the instance that Mr Nguyen is removed from Australia. Ms Nguyen appears to be, together with her husband, even though she appears to evidence psychological fragility, the children’s main sources of safety, secure attachment, warmth and security. The impact of Mr Nguyen’s removal from Australia would appear likely to present her health with unacceptable risks. It would appear very important to the children’s wellbeing for her health to be protected.
It is the writer’s professional opinion that Ms Nguyen’s parenting role should be preserved for the benefit of the subject children by Mr Nguyen’s retainment in Australia, especially and notwithstanding that Mr Nguyen’s capacity and motivation to remain sober and free of offending may falter over time.”
32. In her opinion, Dr Asquith concludes that cancellation of the applicant’s visa and his consequent removal from Australia to Vietnam would not be in the best interests of each of his children.
33. In examination, Mr d’Assumpcao put to Dr Asquith that, from their evidence, the applicant’s sons would be just as disappointed if he were to re-offend and be placed back into prison as they would be if he were removed from Australia. In answer to the question posed, Dr Asquith opined that the best interests of the children would still be served by the applicant remaining in Australia.
34. Under cross examination, Dr Asquith was referred to the 2001 psychological report of Dr Jack White in which he assessed the applicant’s performance as being in the bottom one percentile of the general population and within the “mental retardation” range of intelligence. Rather than drawing on anything Dr White had said, in her view, the likelihood of re-offending was taken from the applicant having suffered trauma in Vietnam, his almost immediate offending in Australia, through to incarceration and having access to drugs. This background would have contributed more to her view of the likelihood of re-offending. When pressed and given more up-to-date material by Ms McGrath, and on the assumption that the applicant had matured and improved, Dr Asquith’s view was that this would “comfort his family and give them strength to proceed”.
Reports and Evidence of Dr Andrew Ellis
35. Dr Ellis had been asked by Mr d’Assumpcao to address specific questions relating to the likelihood of Mr Nguyen engaging in further criminal conduct and the risk of harm to the Australian public should he remain in Australia. He noted that Mr Nguyen and his legal counsel had not given consent for a psychiatric interview and examination. Without a personal examination of a patient, it was not possible to give a definitive psychiatric diagnosis and, on the available documented information, it was not possible to provide a valid opinion in regard to risk of future violence or harm to others. Dr Ellis referred to an actuarial assessment for future violence conducted in 2010 by clinical psychologists within the Department of Correctional Services in South Australia. The particular actuarial assessment used was not described, however, Mr Nguyen was rated in the low range for risk of violent re-offending.
36. Dr Ellis’ report reads in part:
“Factors available in the documentation that have been associated in the scientific literature with an increasing risk for future violence included a history of definite and serious previous violence as indicated by convictions for unlawful wounding and wounding with intent to do grievous bodily harm. The first known violent act occurred over the age of 20 years, but less than 39 years and this is associated with a modest increase in risk of future violence. There is some description in the reports of unstable relationships and unstable employment. These factors are associated with an increased risk of future violence. There is a description of serious substance use problems in the reports, and this again is associated with an increased risk for future violence. The history of committing offences whilst subject to community supervision is also associated with an increased risk of future violence.”
37. As to the nature and extent of any rehabilitation achieved by the applicant as well as the likelihood of any further rehabilitation, Dr Ellis’ report reads in part:
“Prognosis in treatment and rehabilitation is dependent on accurate diagnosis. As previously discussed the limitations on diagnostic certainty influence the certainty with which comments about prognosis in treatment and rehabilitation can be made. In general, gains made in the structured and protected environment of the prison do not automatically generalize to the community, and most benefit is seen when custodial programs are followed up by continued therapeutic rehabilitation in community settings. Continued drug and alcohol counselling in a relapse prevention framework is generally recommended on release from custodial settings for persons with substance use problems. This may sometimes take place within a residential setting, particularly if a person has had tenuous community placements. Another common consideration in persons suffering from opioid dependence is the use of replacement therapies such as methadone or buprenorphine, which have been shown to have considerable effectiveness in reducing street opioid use and reoffending.”
38. As to the likelihood of the applicant engaging in conduct of the type listed in paragraph 10.1.1(2) of the Direction, Dr Ellis’ report reads in part:
“The direction includes a broad range of offences including serious theft, blackmail, organized criminal activity, drug offences including possession, conspiracy and accessory offences. I noticed a history of property crime dating from 1986 with offences recorded in each year at liberty except 1988. Drug supply charges are recorded from 1990, and possession charges from 1994. I note that offences have been committed whilst subject to community criminal justice orders. The judgements available indicate that Mr Nguyen has engaged in criminal activity in company with others.
In general, persons convicted of property and drug offences reoffend at higher rates than persons convicted of violent or sexual offences. Factors associated with repeat property and drug offences include offending while subject to conditional community orders, associating with antisocial networks, infractions whilst incarcerated and heroin dependence. The additional information provides some evidence of institutional infractions during the most recent custodial period.
Factors associated with a reduced risk of property and drug reoffending are successful completion of substance use treatment programs, opioid replacement treatment and age. Mr Nguyen is now in an age category associated with reductions in rates of offending.”
39. In examination, Dr Ellis said that someone who had been dependent on heroin remained at risk of relapse to heroin use and heroin dependence again into the future, probably for periods of at least 5 years after abstinence in a non-controlled setting. There was a significant risk of relapse in general, but not everybody would relapse. Dr Ellis was referred to the assessment summary of Dr Anthony Venning, Clinical Psychologist with the Department of Correctional Services, dated 27 April 2010 (Exhibit R1, page 67). Having read Dr Venning’s assessment, he expressed the view that the likelihood of further drug use and consequential offending gave rise to concern. If he had the opportunity to examine Mr Nguyen, Dr Ellis’ general recommendation would be opioid replacement therapy and residential rehabilitation with group and individual therapy. Other factors for a person with heroin dependence would be stability of accommodation, prospective employment and education. However, to make a definitive treatment plan for an individual, he would need to make a greater assessment of the applicant than the one he had undertaken.
40. Under cross examination, when asked whether abstinence from drugs was critical to Mr Nguyen’s not re-offending, Dr Ellis said that someone who had opioid dependence and other substance dependence problems was at a significantly higher risk, particularly of property offences and further drug offences. There was also greater risk of violent offending, but successful treatment of opioid dependence was associated with reduction of most of those kinds of risks. The general pattern for violent offending and property offending was that the risk of re-offending decreased with increasing age. People in the applicant’s decade of age were at a reduced risk, than people in their thirties. If the applicant remained free of heroin and other illicit drugs, he was much less likely to re-offend than he would be if he returned to drug use. Deterrence tended to show very little changes in rates of re-offending. However, in the applicant’s case, the prospect of permanent removal from the country where he has lived for 30 years would be a much greater motivation and a greater sense of deterrence. Parole supervision of itself did not reduce re-offending. However, if parole was used to facilitate rehabilitation and rehabilitation was completed within the parole framework, this would reduce chances of re-offending. Employment was also a very important factor in avoiding re-offending and drug use. Also, low intelligence was a factor in determining whether a person was more or less likely to re-offend. Persons with a low rate in tests of intelligence tended to have higher rates of re-offending, probably because of difficulties in problem solving. Moreover, someone who was depressed or anxious performed more poorly on tests of intelligence.
Consideration
41. In his closing and before addressing me on the Direction, it was Mr d’Assumpcao’s submission that the applicant was not a witness of credit. When I suggested that that submission would only apply in relation to the first primary consideration, he contended that it principally applied to the first primary consideration, but that the applicant’s credibility was tested in a number of important respects. He put to me that the applicant was an unimpressive witness, he was vague and he was unable to recall instances that he should have been able to recollect. Mr d’Assumpcao contended that the applicant lied to the Tribunal:
(a) about the interview with the Department of Immigration officers on 1 May 1992 and in the answers given to the questions asked at the interview (Exhibit R3, Annexure D);
(b) about the evidence he gave to the District Court in the offence of wounding with intent to do grievous bodily harm in December 1996;
(c) about drugs taken, other than marijuana, whilst in prison; and
(d) about the evidence given in the District Court in November 2002 in relation to the armed robbery offence.
42. Having heard the applicant’s oral evidence, in reviewing the evidence he gave in the District Court and in other relevant material in the G documents, there is some force in Mr d’Assumpcao’s submission that the applicant may not have been a witness of truth at certain times in the hearing before me. There may have been instances where he was simply unable to recall what took place several years ago. There may also have been instances where, suffering as a consequence of his drug taking, he would not have a sufficient recollection of events that were occurring. However, if Mr d’Assumpcao is putting to me that all of Mr Nguyen’s evidence on matters other than his convictions for serious offences is tainted and should not be accepted, I am unable to accept that. In any event, it was Ms McGrath’s submission that she was not seeking to ask the Tribunal to go behind the convictions that had been imposed on the applicant. Moreover, the Tribunal noted that it was bound to accept the fact of the applicant’s convictions (see Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 per Branson, Lindgren and Emmett JJ at [44]).
43. Having noted Mr d’Assumpcao’s submission in relation to the applicant’s credibility, I deal with them below in the course of my consideration of the Direction.
Ministerial Direction No. 41
44. In reviewing the delegate’s decision I must conduct a re-hearing, that is, hear the matter afresh. I may exercise all the powers and discretions of the delegate, and must arrive at the correct or preferable decision on the material before me, and not by reference to the material before the delegate: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, and Shi v Migration Agents’ Registration Board (2008) 235 CLR 286.
45. Paragraph 10(1) of the Direction provides for four primary considerations that must be considered in deciding whether to cancel a person’s visa. All of these primary considerations are relevant in the present matter. As Ms McGrath submitted, they are of equal importance but, as she agreed with Mr d’Assumpcao, that does not mean that each consideration must be weighted equally. By virtue of paragraph 11(1) of the Direction, certain other considerations, although not primary, may be relevant, and if so, must be considered in deciding whether to cancel a visa. Paragraph 11(2) provides in effect that it is appropriate that such considerations must be taken into account, but generally they should be given less weight than that given to primary considerations. I shall consider the four primary considerations and the other considerations that are relevant to the present proceedings, in turn.
46. As the Direction is a statutory instrument, it should be interpreted so as to give effect to the objectives of the Act and in accordance with ordinary principles of statutory interpretation. I must begin with a consideration of the ordinary meaning of the relevant words of the Direction read in their context and having regard to their apparent purpose and to the purposes of the Act.
47. The objectives of the Direction are set out in paragraph 5.1. This paragraph refers to the objective of protecting the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens, and states that the Government is especially mindful to protect the safety of the community’s more vulnerable members.
48. The following paragraphs appear as part of paragraph 5.2, under the heading “General Guidance”:
“5.2(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian community; and
(b)the risk of that harm occurring.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
First primary consideration – protection of the Australian community
49. This requires due consideration to be given to the Government’s objectives as set out in paragraph 5.1 of the Direction. Paragraph 10.1 provides, in effect, that the factors relevant to assessing the level of risk of harm to the community include two factors, namely: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated.
First factor re protection of Australian community – seriousness and nature of conduct (paragraph 10.1.1)
50. Paragraph 10.1.1(1) of the Direction provides relevantly that crimes involving violence are of special concern to the welfare and safety of the Australian community, and such crimes, particularly against vulnerable persons such as minors, are especially abhorrent to the whole community. The Direction provides examples of offences and conduct that are considered serious. Amongst these are grievous bodily harm, reckless injury, assault and aggravated assault (including abduction): paragraph 10.1.1(2)(d); robbery: paragraph 10.1.1(2)(e); and the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs: paragraph 10.1.1(2)(f). Clearly these paragraphs apply to the offences committed by Mr Nguyen and to his conduct at the time of the offences.
51. Paragraph 10.1.1(3) refers to other factors to which regard must be given. As to these factors, the number of offences was significant. The applicant’s criminal history commenced in New South Wales in November 1987, but the matters that appear in the applicant’s history report up until the late 1980s and early 1990s were of a relatively minor nature. Certainly, in cases where drugs are involved, it is not unusual for criminal offending to escalate over time from relatively minor offences. In the applicant’s case, from the late 1980s and the early 1990s, there are a number of dishonesty-type offences in the nature of break and enter, supplying prohibited drugs and stealing. In September 1995, the offence of wounding with intent to do grievous bodily harm was committed and he was convicted and sentenced to imprisonment for 5 years. Then, the later offences of assault with intent to rob whilst armed, unlawful wounding and armed robbery were committed on 8 and 9 August 2001, resulting in a conviction of 13 years and 6 months. In relation to these latter offences, Mr d’Assumpcao submitted that it was open to the Tribunal to find that the offending was not just serious, but very serious. I am not prepared to make this finding. I note that, while the offences are serious and the unlawful wounding was an offence of actual violence perpetrated by the applicant, this is the only offence in his criminal history where he is found to have inflicted actual violence on another person.
52. Mr d’Assumpcao has made submissions concerning the inconsistencies in the applicant’s evidence about the serious offences. In my view, given that a lengthy conviction has occurred, which Ms McGrath accepts, it is not necessary for me to consider the matter further. The applicant has been found guilty of the offences and has pleaded guilty to the armed robbery offences. There is nothing in the applicant’s history, on the balance of the evidence, that he is someone who has a problem with anger or violence. As far as the frequency of the offences, certainly from the early 1990s, they occurred for the most part, every one to three months. The most recent offences occurred in August 2001 with the conviction on 22 November 2002. Since this latter date, the applicant has been incarcerated until his release from prison on parole on 23 August 2010.
Second factor re protection of Australian community – risk that the conduct may be repeated (paragraph 10.1.2)
53. I have given consideration to the applicant’s own evidence and to his demeanour over the two days of the hearing. As to the latter, I was not aware of anything in his responses that might suggest he is within the “mental retardation” range of intelligence. I have also had regard to the documents that appear on his Department of Correctional Services file, in particular, the application for a parole report dated 1 June 2010 (Exhibit R1, pages 68-72). There are also the reports and evidence of Dr Ellis. Having reviewed all this evidence, it is not possible for me to form a clear view as to whether the applicant will or will not re-offend upon his release. Based on the extent of his drug taking, there is still a risk that he may re-offend. However, he has been in prison for the last eight years and has not been tested. Having said this, I accept his evidence that he has not taken illicit drugs of any description during this period. Although drugs have been accessible in prison, his evidence is that he has not taken drugs. I note that Dr Anthony Venning from the Department of Correctional Services has assessed the applicant to be in the low range for risk of violent re-offending should he not receive treatment. On the basis of the applicant’s parole conditions, I would anticipate that appropriate treatment would be available to him in the event of his release.
54. Dr Ellis viewed the existence of stable accommodation for the applicant upon his release to be a factor in his favour. Also, was the factor of supportive family members in that accommodation not relying upon him for financial or other support. Again, this would be a factor in the applicant’s favour in the event of his release. In this event, it is proposed that he will live with his two sons at the home of his sister and her husband. Having viewed Mrs Nguyen and the sons in the giving of their evidence, I am satisfied that the home environment that will be available to the applicant will be a positive factor in his favour.
55. It was Ms McGrath’s submission that the attitude of the applicant’s family is important. Mrs Nguyen, who clearly has a strong connection with her brother, has not indicated any approval of his past conduct. She does not approve of his behaviour and has certainly indicated that she wants to help him make sure that he makes a good rehabilitation for the sake of the children. The evidence before me indicates that the applicant has been a good prisoner. There was a matter of a dispute with another inmate about milk in 2003, possession of a pornographic magazine and also a knife, which the applicant said was to peel skin. Dr Ellis noted that having a makeshift knife and fighting were both on a greater level of seriousness but took place in a remand setting and would be considered less serious in a relatively stable setting. Although Dr Ellis was not particularly impressed with the deterrent qualities of parole, he did indicate that a long parole period (until 2018), if the applicant was released, would allow him the capacity to avoid any re-offending situation. He would also be subject to the directions of a parole officer and the support of the parole system. The directions that are included within the order for release include various conditions which, if breached, will result in automatic cancellation of the parole, likely cancellation of the applicant’s visa and removal from Australia. Also, the threat of deportation would be a powerful deterrent to future offending. I note from the evidence that the applicant seems well liked by the staff and his peers, and according to the Department of Correctional Services, has been treated as being drug free since June 2006.
56. On the basis of the evidence, I find that if the applicant’s visa is not cancelled and he returns to the Australian community on his release, the risk of him reoffending in any of the serious offences referred to in subparagraphs (d), (e) and (f) of paragraph 10.1.1(2) of the Direction is neutral.
57. In summary, therefore, of the two factors relevant to assessing the level of risk of harm to the community of the applicant’s continued stay in Australia:
(a) his offending conduct was serious and there are some limited mitigating factors; and
(b) there is a neutral risk that the offending conduct may be repeated.
Further, applying the guidance provided by paragraph 5.2(4) of the Direction, this is a matter where it would be more appropriate for the Australian community to accept more risk because the applicant has spent his formative years, and a major portion of his life in Australia.
Second primary consideration – whether the applicant was a minor when he began living in Australia (paragraph 10.2)
58. This consideration provides relevantly as follows:
“(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
59. On the face of it, Mr Nguyen satisfies this factor. He was 13 years of age when he began living in Australia, and he spent his formative years here. He lived in Australia for 5 years before attaining adulthood. He came to Australia as a refugee from Vietnam, along with many other Vietnamese at the time.
60. I have already referred to paragraph 5.2(4) of the Direction, which relevantly reads:
“(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
61. The applicant left Vietnam with his father, who is now deceased, and his sister. He has no family in Vietnam. Although he speaks Vietnamese he has no up-to-date familiarity with Vietnam. At the age of 43 years, he has spent 30 years living in Australia and, not unexpectedly, he considers himself to be an Australian.
62. I consider that this second primary consideration should be assessed in Mr Nguyen’s favour.
Third primary consideration – the length of time that a person has been ordinarily resident (paragraph 10.3)
63. Paragraph 10.3(1) of the Direction provides as follows:
“(1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
64. Mr Nguyen was resident in Australia for about 6 years before he started committing offences. These offences were initially of a relatively minor nature. More serious offences, such as aid and abet stealing and supply prohibited drug, occurred after about 8 years residence in Australia. In Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, Deputy President R Handley had to consider the issue of the length of time ordinarily resident in paragraph 10.3(1). At paragraph 40 of his reasons, the learned Deputy President said:
“I note Deputy President Walker’s decision in Re Heyward and Minister for Immigration and Citizenship [2009] AATA 536, when, at [307], he said, that “It is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character”. In that case, DP Walker found that while five years was a significant period, it was insufficient to merit great weight under this consideration, especially as Mr Heyward had spent over a quarter of his time in Australia in prison”
65. In addressing paragraphs 10.2 and 10.3 of the Direction and the “more risk” provision in paragraph 5.2(4), Mr d’Assumpcao referred to the decision of the Tribunal (Buchanan J and Senior Member Isenberg) in Tucker and Minister for Immigration and Citizenship [2010] AATA 559. At paragraph [51] of its reasons, the Tribunal said:
“We accept that Mr Tucker came to Australia at a young age and has been resident in Australia for a long period of time. He is a member of the Australian community but his period of residence has been punctuated by repeated acts of violence and other criminal behaviour. In the circumstances we give those considerations only moderate weight. We take into account that it may be appropriate that the Australian community accept “more risk” than otherwise would be appropriate (clause 5.2(4) of the Direction) but the nature and unpredictability of the risk of harm in Mr Tucker’s case means that this consideration does not provide much assistance to him.”
66. In relation to paragraph 10.3(1), Ms McGrath did not press for a positive finding in respect of the consideration. She submitted that a neutral finding was appropriate and I accept that submission.
Fourth primary consideration – relevant international obligations – best interests of the child (paragraph 10.4.1)
67. Paragraph 10.4.1(4) of the Direction states, in part:
“Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents.”
68. The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship, including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the likely affect that any separation from the person would have on the child; and any known wishes expressed by the child.
69. Mr Nguyen has two children in Australia – Tony who is 17 years of age and Tuanny, who is 13 years of age. As to the reports and evidence of Ms Martin and Dr Asquith, it was clear that both professionals considered the best interests of the two children very carefully. Because of their attachment to their father and of the known patterns where boys of this age long to have that connection with their father, both professionals were convinced that it is in the interests of the two children that the applicant remains in Australia. Having seen and heard the evidence of the two boys and their aunt myself, I am satisfied that, if the applicant was required to return to Vietnam, this would have an adverse psychological consequence for Mrs Nguyen. She has assumed a great deal of responsibility and suffered significant trauma in the past, and does appear to be somewhat fragile. She has health problems, and whilst she is clearly trying to do the best by the children, it is likely that she will not cope well if the applicant is removed from Australia. I would expect that this would, in turn, have adverse consequences for the children and her ability to be an effective parent for them. Although Mrs Nguyen’s situation is best considered under “Other Considerations” in paragraph 11 of the Direction, the impact on her wellbeing is also a factor that can be taken into account in relation to the interests of the children in paragraph 10.4.1.
70. In relation to the factors set out in clause 10.4.1(5) that I have referred to in paragraph 68 above, it seems to me that each of those factors is capable of applying positively in the case of the applicant. As to subparagraphs (a), (b) and (c) of paragraph 10.4.1(5), the two children have had very little physical contact with their father. They have both been cared for by Mrs Nguyen for most of their lives. Nevertheless, she has kept the relationship between the applicant and his sons alive. On the evidence, Mr Nguyen is remorseful and has shown an increasing interest in the children since he has been currently in prison. He has sent them cards, he has sent them money from his work in prison when he has been able to, and he has contacted them, when possible, by telephone. Having seen them and heard their evidence, I am satisfied that, although they have had little physical contact with the applicant, they have a strong emotional connection with him as their father. On mature reflection, it seems to me that, in parenting, the applicant will not immediately take over the main role to care for the children, to cook their meals or to help them with their schooling. The children will continue to live with their aunt, she will keep doing what she has been doing in the past, and will progressively facilitate the development of the father/son relationship.
71. As to subparagraphs (f) and (k) of paragraph 10.4.1(5), the likely effect that any separation from their father and his removal from Australia would have on the children given their belief that he was to be released upon parole, would be devastating. From their evidence, both children “just want a dad” and, as Dr Asquith opined, “the effects of Mr Nguyen’s removal from Australia, are likely to be profoundly detrimental to the best interests of the subject children possibly throughout their life spans.” Both Tony and Tuanny have expressed the wish to have their father live with them and their aunt, as a family. If this were not to occur, as Dr Asquith said, Mrs Nguyen would likely suffer extreme distress which could well impact her already strained capacity to care for the boys, thereby compounding their almost certain increasingly severe distress at their father’s removal.
Other considerations (paragraph 11)
72. Paragraph 11 of the Direction contains a non-exhaustive list of other considerations that are not the primary considerations but, under paragraph 11(1) may be relevant, and if so, must be considered. Paragraph 11(2) provides:
“(2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.”
73. Of these other considerations, the following matters are relevant.
(a) Family and other relationships (paragraph 11(3)(a)): Mr Nguyen’s only family ties are in Australia. His sister lives in Adelaide and he has the opportunity to live with her and to be assisted by her and her husband to integrate into the community. There is also the relationship he has with his children and the opportunity he has, through his sister, to expand and develop that relationship. I find that the cancellation of Mr Nguyen’s visa would entail significant disruption to his immediate family.
(b) Any links to the country to which the applicant would be removed (paragraph 11(3)(d)): Even though Mr Nguyen looks Vietnamese and speaks Vietnamese, he does not know how to live in Vietnam. He would not know how to find a home there or buy food or get a job or obtain his status. There would be no one in Vietnam who could provide any assistance, and he would be returning to a country that is still governed by a Communist regime without any knowledge of how he might be treated as a person who left 30 years ago as a refugee. The fact that he has no familial ties or support in Vietnam is to be considered in his favour (paragraph 11(3)d)).
(c) Hardship to applicant or his immediate family (paragraph 11(3)(e)): As already mentioned in paragraph 69 above, if the applicant is required to return to Vietnam, this would have an adverse consequence for Mrs Nguyen in terms of her psychological well being. As was found by Ms Martin, the information available to her suggests a background of considerable trauma, with the tragic loss of her mother, having to live in secrecy, fleeing her home country by boat, and witnessing appalling events whilst on the boat. Mrs Nguyen’s presentation to Ms Martin was indicative of a person with a major depressive disorder against a background of extensive trauma. Her psychological state was indicative of a person under considerable stress who would be at risk of deteriorating further if her brother was returned to Vietnam. This matter would cause hardship to Mrs Nguyen and is to be considered in the applicant’s favour (paragraph 11(3)(e)).
(d) Whether the person has been formally advised in the past by an officer of the respondent (paragraph 11(3)(g)): The applicant’s evidence was that the interview that took place with officers of the respondent on 1 May 1992 related to a possible criminal deportation that never proceeded. In cross examination by Mr d’Assumpcao, he said that nothing was said at the interview about deportation and he did not know, at the time, that he was being considered for deportation. In the minutes of the interview (Exhibit R3, Annexure D), there is no mention of a warning (or any suggestion of a warning) about the applicant’s conduct and the character (visa cancellation) provisions of the Act. This matter is to be considered in the applicant’s favour (paragraph 11(3)(e)).
74. In summary, those of the factors under the heading “Other Considerations” that are relevant are in favour of Mr Nguyen being able to remain in Australia.
Summary and Conclusion
75. It was Mr d’Assumpcao’s submission that the protection of the Australian community should not be given the same weight as the best interests of the child. He referred again to the decision in Tucker (supra), where the Tribunal commented (at paragraph 65):
“The assessment which is required to be made for the exercise of a discretion whether to cancel a visa under s 501 of the Act in the case of a person who does not pass the character test involves a comparison between: (1) the nature and extent of risk to the Australian community and its members if the person remains in Australia; and (2) the factors which support the view that the risk should, in all the circumstances, be accepted.”
76. He submitted that the first primary consideration, involving the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated, ought to outweigh the other primary considerations. I am unable to accept this submission in the present case. Even if some greater weight was attributed to the seriousness and nature of the applicant’s relevant conduct, I am of the view that even greater weight should in combination be attributed to the risk that the conduct may be repeated (neutral), to the primary consideration in paragraphs 10.2, 10.3 and 10.4.1, and to the other considerations in paragraph 11. Based on this weighting, I do not think that the Australian community would be subject to unacceptable risks of harm if Mr Nguyen remains in the Australian community.
Decision
77. The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the discretion under s 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s visa not be exercised.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of SM RW DUNNE
Signed: .....................................................................................
AssociateDate/s of Hearing 13, 14 & 15 October 2010
Date of Decision 3 November 2010
Counsel for the Applicant Ms Jane McGrath
Solicitor for the Applicant McDonald Steed McGrath
Counsel for the Respondent Mr Paul d'Assumpcao
Solicitor for the Respondent Australian Government Solicitor
6
0