Dao and Minister for Immigration and Multicultural Affairs - [2002] AATA 162

DECISION AND REASONS FOR DECISION [2002] AATA 162

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q01/349

GENERAL ADMINISTRATIVE DIVISION       )
           Re      THAUN DAO
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date13 March 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review

(Sgd) Deputy President DP Breen
PRESIDENTIAL MEMBER
Decision No: 162/2002
CATCHWORDS – IMMIGRATION – Deportation – After Criminal Conviction – Possible Hardship Suffered by Applicant – Prospect of Indeterminate Detention – Whether Affects Validity of Order

Migration Act 1958 (Cth)

Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287
Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803

REASONS FOR DECISION

13 March 2002 Deputy President DP Breen, Presidential Member

This is a review of a decision made on 13 December 1999 by the respondent Minister to deport the applicant, Thuan Dao, under Section 200 of the Migration Act 1958. The respondent Minister also signed a Section 502 Certificate on 13 December 1999 which states as follows:
" CERTIFICATE
I, Philip Ruddock, Minister for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to deport Thuan DAO under section 200 of the Migration Act 1958 because of circumstances specified in section 201, it is in the national interest that Thuan DAO be declared an excluded person in accordance with subsection 502(1) of the Migration Act 1958."

On 28 February 2001, a letter was sent to Mr Dao at the Arthur Gorrie Correctional Centre from Mr Britt Rebetzke, Character Assessment Unit, DIMA Brisbane. That letter relevantly reads:
"You were advised on 24 December 1999 that a decision had been taken by the Minister responsible for administering the Migration Act 1958 to order your deportation. In addition to that deportation decision being made, a certificate was signed by the Minister declaring that because of the seriousness of the circumstances giving rise to the Minister's decision to deport you, it was in the national interest that you be declared an excluded person in accordance with subsection 502(1) of the Migration Act 1958. The effect of the section 502 certificate was to exclude you from seeking review of the deportation decision in the Administrative Appeals Tribunal (AAT).
The recent Full Federal Court (FFC) decision in Karm Singh v Minister for Immigration and Multicultural Affairs has determined that the section 502 declaratory certificate excluding Mr Singh from the AAT review as signed by the Minister in relation to the decision to order his deportation from Australia is invalid. Your section 502 certificate is in the same format as Mr Singh's and therefore may also be invalid. As a consequence of that FFC decision, the decision to deport you may now be able to be reviewed by the AAT. You should be aware however that there may be a requirement to seek from the AAT an extension of time to appeal the deportation decision."
An application for extension of time was sought by the applicant and with the consent of the respondent a Direction was issued by the Tribunal on 9 May 2001 extending the time for lodging the application for review.
This matter was heard by me on 21 June, 9 and 10 July 2001 in Brisbane. The applicant was represented by Mr D O'Gorman of Counsel under the auspices of the Queensland Bar Association's Pro Bono Scheme. The respondent Minister was represented by Mr B Cramer, Solicitor of Messrs Blake Dawson Waldron.
As a background to the lead-up of the hearing of this matter, I set out the following. A Directions Hearing was held in this matter on 20 June 2001 at which Mr O'Gorman informed me that the applicant had been in detention for some 16 months at the time of making the application for review. Mr O'Gorman sought an urgent hearing as he advised that Mr Dao remains in custody for two reasons, firstly, that Vietnam refuses to take the applicant and secondly that to date no attempts had been made to institute proceedings to have the decision of the Minister reviewed. Mr O'Gorman also stated that the applicant was eligible for parole on 3 January 2001, home detention on 3 September 2000 and for release to work on 4 September 2000. The applicant had not been considered for these because of the decision under review.
The matter was listed for an urgent hearing on 21 June 2001 in order that Mr O'Gorman could take evidence from the applicant and his family in lieu of providing witness statements. Oral evidence was received from the applicant, Thaun Dao; Lin Sac Thai Nguyen, the applicant's aunty; Huong Thi Kim Dao, the applicant's sister; Bong Dao, the applicant's father; Huynh Thi Nguyen, the applicant's mother and Nguyen Tan Cam, the applicant's uncle. Mr Cramer reserved his right to cross-examine the witnesses at the hearing proper which was listed for 9 and 10 July 2001. A urgent transcript of the evidence taken on 21 June 2001 was obtained for the parties.
At the hearing on 9 July 2001, Mr Cramer cross-examined the applicant and Bong Dao, the applicant's father. On 10 July 2001, Graham Martin Kennedy, Department of Correctional Services, Townsville, who had provided a report dated 10 March 1999 at Folio 47 in the "T" Documents, was called by the respondent to give evidence.
The following documents were tendered in evidence before the Tribunal.

Exhibit 1 "T" Documents
Exhibit 2 Extract of Corrective Services File
Exhibit 3 Prison Reports
Exhibit 4 MOU between Australia and Vietnam

Mr Dao is 26 years of age and a Vietnamese citizen. He arrived in Australia on 23 March 1989 at the age of 14 years. On 11 November 1998 the applicant was convicted in the Cairns Supreme Court of the following charges:
Count 5: 'that on the twentieth day of February, 1998 at Cairns in the State of Queensland Thuan Dao unlawfully supplied a dangerous drug namely heroin to another.'
Count 6: 'that on the first day of March, 1998 at Cairns in the State of Queensland Hoa Dao and Thuan Dao unlawfully had possession of a dangerous drug namely heroin AND it is further alleged that the said dangerous drug was a thing specified in the first schedule of the Drugs Misuse Regulation 1987 and the quantity of the thing exceeded the quantity specified in Schedule 3 of the Drugs Misuse Regulations 1987 in respect of that thing.'
Count 7: 'that on the first day of March, 1998 at Cairns in the State of Queensland Thuan Dao and Hoa Dao unlawfully supplied a dangerous drug namely heroin to another.'"

The applicant was sentenced as follows:

"Four (4) years imprisonment. Ordered to be considered for parole after serving 18 months of that period. Ordered that 131 days of pre-sentence custody is to be taken into account as part service of the sentence. Ordered that the sum of $5,435.00 seized from the accused relating to the offences is to be forfeited to the Crown."

It is this conviction which brings the applicant within Section 200 of the Migration Act 1958.
The applicable Ministerial Direction is "Direction 9 – General Direction – Criminal Deportation". The Direction states that the primary considerations are the expectations of the Australian community and, where an applicant is involved in a parental relationship with a child, the best interests of that child. The latter consideration does not apply in this case.
Issues to be taken into account when evaluating the protection of the Australian community include the seriousness and nature of the offences committed by the applicant, the risk of recidivism and the deterrent effect of deportation on other non-citizens. I now deal with other matters to be taken into account.
Seriousness and Nature of the Offence
As I commented during the course of the hearing, a great majority of the Australian community have little or any tolerance for use of illegal narcotic substances. Those who trade in such substances by way of sale or supply to others are regarded as very serious offenders. Thus, the deportable offence in this particular case is to be ranked as a very serious one indeed. Its nature is repugnant to the Australian community.
Risk of Recidivism
The deportable offence is not the first offence the applicant has been convicted of. His criminal history reveals convictions for other drug related offences including possession of dangerous drugs and possessing drug-taking utensils. The applicant has also been charged with breaching bail undertakings on two occasions.
The applicant submits that these offences, and the deportable offence, arose from the applicant's addiction to drugs. The applicant claims to have now overcome this addiction due to medical conditions from which he now suffers, and there is evidence that he has not used drugs during his period of imprisonment. However, I note that Mr Kennedy, a Drug and Alcohol Counsellor at the Lotus Glen Correctional Centre expressed the opinion (in March 1999) that the applicant was likely to "drift back into the use of and supply of Heroin when the opportunity arises".
The respondent submitted that the applicant should be regarded as representing a "not insignificant" risk of re-offending. The applicant committed the deportable offence in association with his brother, Mr Hoa Dao, who could not be said to be a positive influence on the applicant. The respondent also pointed to the applicant's criminal history as indicative of the likelihood of the applicant re-offending.
On all of the evidence before me, I am of the view that there is a considerable risk of further offences being committed by the applicant and by offences I mean, of course, breaches of the criminal law of the kind reflected in the conviction which led to the decision under review.
General Deterrence
The making of a deportation order, if communicated to the wider community, carries a significant deterrent effect. However, if it is not so communicated then its potential for such deterrence is considerably diminished. I am of the view that the potential of the power in the Minister to deport people, if communicated to persons migrating to this country, would prevent the commission of many crimes in the first instance. Mr Dao in his evidence made it quite clear to me that he had no idea that he was liable to deportation as a consequence of his involvement in criminal activity.
I have heard that statement many times in cases of this kind. It is my hope that the legal representatives of the Minister in this case advise their client of these comments. With my significant background as a legal practitioner in criminal law exclusively before my appointment to the Administrative Appeals Tribunal in 1986 I can offer the assurance to the Minister that these comments come with the force of that experience, a career which involved me as a Solicitor and later Counsel in many, many hundreds of criminal trials.
Hardship suffered by the Applicant
The applicant has an extended family network in Australia including a grandmother, both parents, two brothers and one sister. It was submitted that the applicant would suffer considerable hardship if deported from Australia as he has spent most of his adult life in Australia and his deportation would separate him from his close family.
In response, the respondent argued that whilst the applicant has a large number of relatives in Australia, he does have some family (an aunt and three cousins) in Vietnam. The applicant does not have any children or a spouse in Australia, nor does he have any assets. The respondent further contends that the applicant has been reliant on social security payments during lengthy periods of unemployment and has not had any significant involvement in the Australian community during his time in the country.
Another factor raised by the applicant relates to the hardship he may face due to a possible delay in his deportation because of the Vietnamese Government's refusal to allow him entry into their country. It is contended that the "difficulties" facing the Minister in organising the applicant's deportation may not be overcome in the foreseeable future.
Section 206 of the Act confirms the validity of a deportation order despite any delays in the execution of the order. Although the likelihood of indeterminate detention pending the execution of a deportation order is an important matter which should be considered by the Minister when determining whether a detainee should be released from detention pending their deportation (see Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287 at 293; and Vo v Minister for Immigration and Multicultural Affairs [2000] FCA 803 at par 12), the length of detention does not itself destroy the validity of the detention or the decision to deport (see Vo (supra)).
I have carefully considered the submissions put forward by the applicant as to the possible hardships he would face if deported. However, I am not persuaded that these hardships are sufficient to outweigh the primary considerations in matters of this kind, that is, the expectations of the community and the need to protect the Australian community.
Community Expectations
It is the expectation of the Australian community that those from overseas whom the privilege of joining its ranks is extended will comply with the community standards and will obey the laws of the country. For serious offences of the kind reflected by the conviction of Thaun Dao, the expectation of the Australian community would be that the exercise of the Minister's relevant power be considered very seriously indeed. There would be a community presumption of its exercise in favour of the making of a deportation order.
Having regard to all the above matters, I am of the view that the decision under review should be affirmed.
I certify that the twenty-six (26) preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Breen.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 June, 9-10 July 2001
Date of Decision  13 March 2002
Counsel for the Applicant        Mr D O'Gorman
Solicitor for the Respondent    Mr P O'Higgins
  Blake Dawson Waldron