Do and Minister for Immigration and Citizenship
[2013] AATA 198
•5 April 2013
[2013] AATA 198
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0200
Re
Minh Hoang Do
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 5 April 2013 Place Melbourne DecisionThe reviewable decision made on 14 January 2013 is affirmed.
(sgd) John Handley
Senior Member
IMMIGRATION – applicant arrived in Australia in 1992 when 16 years of age – previously detained for 4 years as a refugee from Vietnam in Malaysia – first offended at age 20 in 1996 – multiple convictions for possession, use and trafficking of heroin – applicant received warning letter in 2007 – subsequently convicted on 3 occasions in 2010 for drug offences – last convicted in 2010 – Minister decided applicant did not pass the character test and visa should be cancelled –– Direction N° 55 – applicant's history and the criteria within the Primary Considerations favoured affirmation of the decision under review.
LEGISLATION
Migration Act 1958 ss 499, 501(2), (6) & (7)
REASONS FOR DECISION
Mr John Handley Senior Member
The applicant is a citizen of Vietnam who entered Australia on 26 March 1992 when he was 16 years of age. He has subsequently been issued with a Class 55 BB Return (Residence) Subclass 155 (Five Year Resident Return) visa. A delegate of the Minister decided on 14 January 2013 to cancel that visa pursuant to s 501(2) of the Migration Act 1958 (the Act). The applicant applies to review that decision.
The Minister’s delegate decided that the applicant did not pass the character test because he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more (s 501 (6) and (7) of the Act).
BACKGROUND
The Ministers delegate initially made a decision on 17 May 2011 to cancel the applicant's visa. He did not lodge an application for review of that decision in this Tribunal.
The applicant’s solicitors subsequently decided to make an application on 1 December 2011 upon the Department of Immigration and Citizenship (the Department) for a protection visa to be issued to him. That application was unsuccessful and an application was then made to the Refugee Review Tribunal (RRT). A decision, following a hearing of that application, was made on 8 August 2012. The decision to refuse the issue of a protection visa was affirmed. An application was then made to the Minister directly pursuant to s 417 of the Act. When that application failed, the applicant applied to the Federal Magistrates Court, on 6 December 2012, to restrain the Minister, by way of injunction, from deporting him. That application was unsuccessful.
The applicant first applied to this Tribunal on 9 January 2013 to review the decision made on 17 May 2011 (application N° 2012/5537). At a directions hearing convened shortly after that application was lodged, the Minister's representative conceded that the notice served on the applicant conveying the decision was defective. It was agreed that the Minister would issue a new decision. The decision was made on 14 January 2013 and an application was lodged on the following day. That application is the subject of this review. The decision subsequently made is in identical terms to the former, save for the date it was made.
LEGISLATION
Section 499 of the Act empowers the Minister to issue written directions to a person or a body who is empowered to perform a function or exercise powers under the Act. The power to decide whether a visa should be cancelled is found within the discretionary provisions of s 501(2) of the Act. When exercising the discretion, the directions issued pursuant to s 499 must be followed.
When the decision was made on 17 May 2011, the Minister’s Direction N° 41 was in force. That was revoked on 25 July 2012 when the Minister issued Direction N° 55 which commenced on 1 September 2012. Having regard to the background of this application, the parties agreed that Direction N°55 will apply in this review.
The Preamble to Direction N°55 (commencing at paragraph 6) contains 3 sections entitled Objectives, General Guidance and Principles. The Objectives and the statement of General Guidance in Direction N°55 is similar to that which was contained in Direction N° 41. The section entitled Principles, commencing at paragraph 6.3, is a significant addition to the Directions of the Minister when compared to Direction N°41.
The principles may be summarised as follows:
(a)Australia has a sovereign right to determine whether non-citizens are of character concern (refer s 5C of the Act and Annex B of Direction N° 55) and whether they are allowed to remain in Australia, which should be regarded as a privilege. In return, there is in an expectation that they will abide by Australian laws, will respect important institutions and will not cause or threaten harm to individuals or the Australian community at large.
(b)A non-citizen who has committed a serious crime, including crimes of a violent or sexual nature and particularly against vulnerable persons such as minors, the elderly or the disabled should expect to forfeit the privilege of remaining in Australia.
(c)The harm as a consequence of criminal conduct or offending may be so serious, in some circumstances, that the risk of similar future conduct is unacceptable. Strong countervailing considerations may not be sufficient to prevent cancellation of a visa.
(d)There is a low tolerance of any criminal or other serious conduct (refer s 501(6)(c) and (d) of the Act and Annex B) by visa holders who have been present in Australia for a short period of time. A higher level of tolerance may be afforded to visa holders who have lived in Australia for most of their life or from a very young age.
(e)Non-citizens who have held a visa for a limited period and who have engaged in criminal or other serious conduct should not have an expectation that they will be allowed to remain permanently in Australia.
(f)The length of time that a non-citizen has made a positive contribution to the Australian community and the consequences of cancellation of a visa upon children and other immediate family members in Australia are relevant considerations.
Section 2 of Direction N° 55, commencing at paragraph 7, provides guidance in exercising the discretion and compels the Tribunal to take account of the Principles (above) in order to determine:
(a)whether a non-citizen will forfeit the privilege of continuing to hold a visa; and
(b)whether the risk of future harm by non-citizens is unacceptable. This will require consideration of the likelihood of any future harm, the extent of potential harm should it occur and the extent to which any risk of future harm, if at all, should be tolerated.
In exercising the discretion under s 501(2) of the Act, paragraph 8 of Direction N° 55 requires the Tribunal to take into account the primary and other considerations set out in paragraphs 9 and 10 respectively. Primary considerations should generally be given greater weight than the other considerations.
EVIDENCE
The Applicant
The applicant adopted a statement he prepared on 13 March 2013 (Exhibit A1). Relevant parts, by way of introduction to this decision, may be summarised as follows. Where necessary any confusion or ambiguity within his statement, subsequently clarified in evidence, will also be recorded below.
The applicant was born in Vietnam on 4 October 1975. He is presently 37 years of age. His mother had previously been married to a person who was a soldier in the South Vietnamese Army but was killed during the Vietnam conflict. Her second husband, the applicant's father left his mother (and Vietnam) a short time before or after his birth. He recorded that his father worked with the American forces during the Vietnam war (Exhibit A1, paragraph 3).In evidence, he said his father was a member of the South Vietnamese army. The applicant said he has never had contact with him. It is understood that he lives in the United States.
In approximately 1986, the applicant's grandmother, an aunt and an uncle left Vietnam and migrated to Australia. The applicant's mother, by that time, had remarried. The applicant has spent his early years living with another aunt who left by boat and travelled to the Philippines.
When the applicant was 12 years of age, he learnt that his relatives in Australia were prepared to sponsor his arrival. For reasons which remain unclear (to me), the applicant left Vietnam by boat with a family friend. They arrived in Malaysia where they were detained as refugees. He said that his refugee status was advocated by UNHCO representatives on the basis that he would suffer discrimination by remaining in Vietnam because his father was a former member of the South Vietnamese Army. The applicant remained in Malaysia in refugee accommodation for approximately 4 years. His aunt and uncle travelled to Malaysia, from Australia and assisted him to leave. He was issued with a visa. He eventually arrived in Australia when he was 16 years of age, in 1992 and was reunited with his grandmother and other aunts and uncles.
The applicant had been educated to grade 6 primary level in Vietnam. When he arrived in Australia he could barely speak English. He was placed in a year 10 class at a secondary school near the home of an aunt and uncle with whom he was living. Not surprisingly, his experience was very difficult. He left school during year 11 and worked with an uncle in a family clothing business.
After a few years, the applicant said that he preferred to play rather than work. He denied he had experienced disciplinary issues with his grandfather and with his uncle. He later obtained employment in a food processing factory, in a warehouse and as a fruit picker. He also received Newstart Allowance payments from Centrelink. He agreed that most of his income was expended on the purchase of heroin. He was in a relationship with his girlfriend, A, with whom he later had 2 children, in 1994 and 1996. They are now aged 18 and 16. He lived with A in a de facto relationship for about 8 years until 2004 when they separated.
In his statement, the applicant recorded that he first commenced use of drugs in about 1997. He later became addicted to heroin. As a consequence, he offended and has been convicted.
The applicant has an extensive criminal history in Australia. He was first convicted, as an adult, on 20 May 1996, 4 years after arriving in Australia at the age of 20, and in the same year his second child was born. (He appeared before the Dandenong Magistrates’ Court on a charge of possession of heroin. That would suggest that his drug habit commenced before 1997 and no later than in 1996). He was last convicted on 30 November 2010 when he was sentenced to 3 years imprisonment. He entered a guilty plea. It was that conviction which gave rise to the decision to cancel his visa. That sentence, given after a guilty plea, is an indication of the seriousness of his offending.
The Victoria Police and the Australian Federal Police (AFP) criminal history reports disclose 13 appearances before the Magistrates’ Court at Dandenong and one appearance before the County Court between 20 May 1996 and 30 November 2010 (Exhibit R1, p.245-256 and p.55-57).
A summary of the reports indicates the applicant having been found guilty of many charges of use and possession of cannabis; use, possess and traffick in heroin and possess a drug of dependence. He has either been convicted or offences have been proved without conviction on charges of failing to answer bail; stating a false name; possessing money being the proceeds of crime; dealing with property suspected as the proceeds of crime; breach of a drug treatment order; entering a building with intent to steal; theft and breach of community based order.
I cannot reconcile the number of convictions for each of those offences from the Victoria Police or the AFP reports. Counsel for the Minister submitted the applicant was convicted on 9 occasions for trafficking and 8 convictions for possession of heroin. Neither the applicant nor his Counsel took objection to those aggregates. I will, for the purposes of this review, find as a fact that the applicant has been convicted, on 9 occasions, for trafficking of heroin and on 8 occasions for possession of heroin.
The reports indicate that between 1996 and 2010 (14 years), the applicant was in court on drug charges in most of those years. When it was put to him that serving a sentence was not a deterrent from the possession, use and trafficking in heroin, the applicant said he wanted to quit but the absence of association with family and the adverse influence of his associates caused him to return to his habit.
The applicant said he became addicted to heroin because having left home he was not supervised by his aunt (with whom he had lived) and was adversely influenced by friends who had introduced him to drugs. Having become addicted, he continued to offend by trafficking drugs to support his habit. He unsuccessfully attempted treatment of his heroin habit, including prescribed methadone, imposed by Orders and sentences of Magistrates and by voluntarily undertaking acupuncture (which he described as detox) in Vietnam on 3 occasions. He said he relapsed into drug use and trafficking of heroin, again by his association with friends and associates and the absence of supervision by his family. He acknowledged that he was not supervised because of his choice to live independently of his family. Indeed, he said he was reluctant to have family contact whilst he was addicted and there were many lengthy periods of time where family members had no idea where he was, including times when he was in gaol.
On 29 November 2007, the applicant was convicted and sentenced on a charge of trafficking heroin. Whilst he was serving that sentence, he received a letter from an officer of the Department warning him that any further criminal convictions could result in cancellation of his visa (G-documents, p.91-92). The applicant acknowledged receipt of that letter and he understood what it meant but said he did not think much about the consequences of the warning. He did not regard it to be serious. He thought that small dealing to support my habit was not a big deal.
He was released on parole in May 2008. Whilst on parole he commenced a relationship which ended when his friend died, he said, in his arms, from an attack of asthma. He said he was unable to assist her, despite his attempts to administer Ventolin by an inhaler because her jaws were locked.
The applicant said he was devastated by her death and he resumed his heroin habit. He was later charged and appeared in court on 3 occasions in 2010 on drug-related charges, principally possess, use and trafficking of heroin.
The applicant said he now understands that the Department is serious about the consequences of reoffending. This was especially apparent to him because in December 2012 he was awoken one morning whilst he was in immigration detention and taken to Melbourne airport. In his statement he recorded that he was then in shock and very scared (Exhibit A1, paragraph 32). He had been booked on a plane to be deported to Vietnam. About 15 minutes before it was due to leave, his solicitors had been able to arrange a reprieve from the Federal Court which had ordered that he not be removed.
During his period of sentence following the conviction in November 2010, the applicant failed routine drug sampling on 5 occasions. His samples returned positive to the drug Buprenorphine. The applicant said that drug is a painkiller, which had been prescribed prior to the commencement of his sentence in 2010. He said he had suffered a recurring infection in his left groin which followed surgery for removal of an abscess which he described in evidence to be bigger that the size of a golf ball. Antibiotics provided temporary relief but Panadeine Forte did not relieve pain.
Buprenorphine had previously been prescribed by his doctor and was administered to him by a pharmacist in powdered form. He assumed he was required to take it in that manner and by supervision of the pharmacist because he was known to be an addict. He was able to obtain that drug, from sources other than doctors, within the prison.
The documents lodged pursuant to s 501G of the Act (the G-documents) contain references to him having been found on a number of occasions to be in possession of drug paraphernalia comprising syringes, a spoon and a white powder which he said was consistent with him using buprenorphine. He dismissed the suggestion put to him in cross-examination that the paraphernalia found and the presence of white powder was consistent with possession of morphine. He said the syringe was used to inject a solution of the buprenorphine powder and water. He said that method gave pain relief earlier than consuming the drug orally.
In approximately October 2011, the applicant said he wrote a letter to his relatives asking for their help and seeking reconciliation with them. He was then in immigration detention. Arrangements were made for him to be represented by his solicitors who acted for him in his applications to the Minister, the RRT, the Federal Magistrates Court and in this review. He denied that his contact with his family was not a genuine attempt at reconciliation but rather to seek their support to permit him to remain in Australia. He said the reason he wanted to remain in Australia was to reconnect with his family and his children.
On reflection, the applicant said he now felt remorse for his offending and the damage that had been caused to others, his family and to himself. In cross-examination, the applicant agreed that heroin was a highly addictive substance and many lives had been ruined. He denied the suggestion put to him that he had many opportunities in the past to be reunited with his family and obtain their support but he had chosen to continue to use and traffick heroin. He said, he did not think of the consequences of heroin use or the traffick of it whilst addicted. He denied that his sense of remorse was first expressed during this review and was not genuine.
The applicant said that if he is returned to Vietnam, he will be without family and emotional support. Whilst he does speak the Vietnamese language, he said he left as a child (he is now 37 years of age) and he does not know much of the country. He did visit his mother when he travelled to Vietnam for his acupuncture treatment. She travelled to Australia 4 or 5 years ago and visited his children.
If permitted to remain in Australia, the applicant said he is confident that he will receive family support. He said he will learn English and will return to study. He will also attempt to learn a trade. He said he will be protected by his family who will also offer him financial support. He will seek to restore and improve his relationship with his children. He acknowledged that this review is his last opportunity and if permitted to remain in Australia, he will not be given any more chances. He said he understands that he has 18 months remaining on parole and any offending within that period will almost certainly result in a return to gaol, another conviction and the likelihood of another decision of the Minister to cancel his visa. If permitted to remain in Australia, it is his wish to honour the chance given to him and to restore his life and relationships with his children.
The applicant was referred by his solicitors to Ms Imelda McLean, a consultant psychologist, on 2 occasions on a medico-legal basis. He acknowledged that she had diagnosed him as suffering from anxiety. The applicant said when he was an addict, he worried about his addiction. He did not now regard himself as being addicted and said that he now worries about being deported. He agreed that he was insecure, depressed, had a desire to belong and had a sense of alienation. He agreed that he lacked self‑control and was emotionally immature. He also agreed that he previously had a tendency to pursue immediate gratification, by taking heroin.
I thought he was ambivalent with respect to a need for drug counselling and treatment. On the one hand he said that he did need treatment for his dependence but then said that he did not regard it as being necessary because he did not now believe he was addicted. However, if his parole officer insists, he said he will volunteer to enter a rehabilitation program. He said that he would also participate in counselling or psychotherapy if it is good for me. He agreed that he had not arranged any treatment programs but said his relatives had recently offered to arrange programs for him.
On 2 February 2011, it was reported that the applicant would benefit from a referral to drug treatment and counselling (G-documents, p.365 – 366). On 3 August 2011, after one of the occasions when the applicant had been found positive to consumption of buprenorphine, he was found, whilst still at the Port Phillip prison to be ineligible to participate in drug free incentive program (G-documents, p.405).
PRIMARY CONSIDERATIONS
There are four primary considerations that I must have regard to when exercising the discretion in s 501(2) of the Act, namely:
(a) protection of the Australian community;
(b) strength, duration and nature of the person’s ties to Australia;
(c) the best interests of minor children in Australia; and
(d) international non-refoulement obligations.
Protection of the Australian Community
Decision-makers (including Tribunal members) must give regard to the protection of the Australian community from harm as result of criminal and other serious conduct by non‑citizens. Remaining in Australia is to be regarded as a privilege and visa holders must, in return, adhere to an expectation that they will be law-abiding, respect important institutions and not cause or threaten harm to individuals or the Australian community.
In considering the protection of the Australian community, decision-makers should have regard to the nature and seriousness of the person's conduct to date (9.1.1) and the magnitude of any risk posed to the Australia community should the person reoffend or engage in other serious conduct (9.1.2). The discussion that follows immediately will concern the criteria found within each of these sub-parts.
The criminal conduct of the applicant in Australia must be regarded as serious.
His conduct mainly involving possession, use and especially trafficking in heroin is of a disgusting and despicable nature. The applicant has asserted that his trafficking of heroin was principally to fund his own heroin use. He supplied other persons who were willing purchasers. His customers were vulnerable because of their addiction.
Possession, use and trafficking of heroin is illegal in Australia and for good reason. The public purse must be opened to fund the cost of treatment to those who are addicted, especially those needing treatment as a result of overdose. Rehabilitation facilities also operate at a cost to the community. The effects of addiction cause families and relationships to suffer. The ability of persons addicted to heroin to hold employment and meaningfully contribute to the community is severely compromised. Those who are addicted sometimes resort to other crimes either because of the effect of the addiction and/or the need to obtain monies to fund their addiction. Except for treatment of overdose, all of the above features match the applicant’s profile.
By his conduct of trafficking heroin, the applicant has been reckless and has abused the privilege given to him as the holder of a visa. He has not obeyed Australian laws. In addition to the harm that he has caused himself and his family, he has also committed other criminal acts which have harmed members of the Australian community. His explanation that his trafficking of heroin was mainly to satisfy his own addiction attracts little weight. His sale of heroin must have caused considerable harm to his customers.
It is difficult to accept his expression of remorse given during this review and recorded in the history taken by Ms McLean in her report of 4 March 2013 (Exhibit A2). He has been offending since 1996 when a charge of possess heroin was first recorded. The first charge of trafficking heroin resulted in a conviction in May 2000. He has subsequently offended on many occasions. He has had many opportunities to refrain from his criminal activities. He has been offered, by the Magistrates’ Court, the opportunity to reflect on his conduct by imposition of community-based orders and entry into drug rehabilitations programs. That he has been found guilty of breaching those orders and failing to enter into those programs satisfies me that he abused the opportunities that were given to him to rehabilitate. Regrettably he continued to offend. The expression of remorse recorded by Ms McLean was directed at the impact of his conduct upon his family and his former partner and children. There is no recording of a history taken by her of any remorse directed at the effect trafficking heroin has had upon other persons and on the community at large.
In 2007 the applicant was given a written notice by an officer of the Department warning him that continued offending may result in visa cancellation. The applicant said he understood the notice but said that he did not think about the consequences of continuing to offend, he did not regard the notice as serious and thought that dealing to support his own habit was not a big deal. This is a troubling admission and does not satisfy me that he understands the serious nature of his conduct. It is also absent of any indication of the effect of his trafficking upon other persons.
On balance therefore, the nature and seriousness of the conduct must be regarded seriously and I attach considerable weight against him with respect to that criteria.
In large part, because of the applicant’s conduct to date, I am satisfied that there is a risk to the Australian community should he be permitted to remain in Australia.
Having ignored the warning notice that he received in 2007 and subsequently having been convicted on 3 occasions in 2010 of trafficking and possession of heroin, it is difficult to accept as genuine the applicant’s expression of remorse and plea that he will seek to reunite with and agree to be supported by his family, whilst he is facing visa cancellation. The ambivalence in his answers to questions about entry into drug rehabilitation programs also causes me considerable concern. Whilst I acknowledge the submission of his Counsel that he did not test positive to opiate use, in gaol, on any screenings, the multiple offences that he did commit in gaol, even accepting that buprenorphine was consumed as a painkilling agent, indicates to me that he is a person who is not prepared to honour rules of conduct and behaviour.
On balance, I think that the applicant is a person in whom trust must be placed with considerable caution, if not apprehension. His breach of protocols within prison, his failure to answer bail on a number of occasions, his failure to undertake community‑based orders and drug treatment programs imposed by Magistrates and avoidance of his family, all have a common theme, namely, a preparedness to ignore persons of authority or persons who were prepared to place some trust in him. With that history, the applicant would need to make significant changes to honour the obligations that will be imposed upon him during the 18 months remaining on parole if he were permitted to remain in Australia. It is difficult to have any confidence, with his past history, that he would refrain from offending, as a condition of release on parole.
In her first report dated 17 June 2012, Ms McLean recorded, at page 8, that the history obtained by her from the applicant indicated that his chances of reoffending are about 0 out 10. That assessment was qualified on the basis of psychological tests administered to him and an indication given to her that he was prepared to accept treatment, change and restructure his lifestyle, return to study, obtain a job and avoid drug related activities. However, Ms McLean was unaware of assessments made by officers of Corrections Victoria using the Victorian Intervention Screening Assessment Tool (VISAT) on 2 February 2011 and 5 October 2011 (G-documents, p. 325 and 291). Each assessment found that his general risk of reoffending was high.
In her report of 4 March 2013, Ms McLean recorded that the applicant told her that he had been drug free since his arrest in August 2010. She was not aware that on 5 occasions whilst detained at Port Phillip prison the applicant had returned a urine sample positive to buprenorphine (the last occasion being on 21 December 2011) or that he had been found, on 3 occasions, to be in possession of drug paraphernalia. Ms McLean was not aware that the applicant had been found to have breached bail on 4 occasions and had also breached community-based orders and treatment orders. She said that had she been given that history it would have affected her findings and would have caused her to reassess the risk of the applicant reoffending.
Ms McLean agreed with a finding of an officer of the Dandenong Drug Court on 6 May 2010 that at interview the applicant had limited insight into his need to cease heroin use. She said that the applicant lacked self-control and self-discipline and heroin had control of him. However, if suitable treatment opportunities were given to him and he was prepared to accept those opportunities, she was confident that with acceptance of and insight into his addiction, together with support of his family, he could resist returning to drug abuse.
On balance, I am sure that Ms McLean was well intentioned and reported on the history given to her. However, documented information from other persons and agencies was not provided to her. I am not inclined to attach much weight to the opinions she expressed.
I am satisfied that there is an unacceptable risk that the applicant will reoffend if released into the Australia community. Should that occur, members of the community will be at risk of harm as drug-related offences have far-reaching consequences. I am not satisfied that the applicant understands the serious nature of his conduct nor am I satisfied that the risk he poses is acceptable. I do not think the Australian community would tolerate his behaviour despite him having been here for 21 years. On balance, these findings attract considerable weight against the applicant.
Strength, duration and nature of the person’s ties to Australia & best interests of minor children in Australia
Paragraph 9.2 of Direction N° 55 provides that the strength, duration and nature of the person’s ties to Australia must be assessed. Consideration of the criteria at 9.2 must have regard to the Principals found at paragraph 6.3. Paragraph 9.3 compels consideration of the best interests of minor children in Australia affected by the decision under review. Considerations within that part are duplicated also within paragraph 9.2, where consideration is to be given to the strength duration and nature of family members who are Australian citizens.
The applicant entered Australia in 1992 at the age of 16 accompanied by an aunt and uncle who were able to secure his release from a refugee camp in Malaysia where he had been detained for the previous 4 years.
I cannot discern from the documents lodged in this review when the applicant first offended. However, the Victoria Police report at page 256 of the G-documents indicates the applicant was first before the Dandenong Magistrates’ Court on 20 May 1996 upon charges of failing to answer bail and possess heroin. It follows that he offended on an occasion prior to that date. If it was in 1996 it would have been about 4 years after his arrival and then when he was aged about 20 years.
On the basis of the evidence heard in this review and the contents of documents lodged, I am unable to find that the applicant has spent any time contributing positively to the Australian community (Paragraph 9.2(1)(a)(ii)).
It is very difficult to discern his ties to Australia. The duration of his residency is 21 years but the nature has largely been of repeated criminal offending and self-imposed absence from his extended family. The strength of his connection with Australia, in the absence of a contribution, at any level, positive or otherwise, is difficult to identify. He has 2 children, who are Australian citizens but his relationship with them is remote.
The applicant has a large network of extended family in Melbourne. He initially lived with an aunt and was employed in a family clothing business. After a relatively short period of time, the applicant left that employment and virtually left his family. There were extensive periods of time when his whereabouts were unknown to family members. He subsequently reunited with them in late 2011.
The applicant was previously in a de facto relationship with A, with whom he had 2 children. His daughter is over the age of 18 years. His son will turn 17 in May this year. He has not had any meaningful connection or relationship with A or his children for many years.
After he and A separated, the applicant said he saw his children about every 2 weeks and paid child support for them. He never saw them when he was in gaol. There was no evidence of any exchange of letters, cards at Christmas or on birthdays, or telephone contact, including telephone calls initiated by him within gaol. On the day of hearing of this review, A and his children entered the Tribunal hearing room approximately one hour after the hearing commenced and heard part of his evidence. They remained until the luncheon break but did not return. The applicant said he last saw his children when he attended the RRT in 2012. Neither A or his children gave evidence in this review or provided any statements in support.
I acknowledge that in the event the applicant is returned to Vietnam the opportunity to have a meaningful relationship with his children will be very difficult and the opportunity for them to visit him will be, in the absence of evidence, equally difficult. Communication by telephone or Skype or other telecommunication devices of course are possible but are no substitute for personal contact.
The applicant has had a distant or virtually absent relationship with his children for many years. During the hearing the applicant said there were occasions when he did not contact his children because he did not know where they were living. Although the applicant was separated from A, as a responsible parent, I would have expected him to maintain contact with his children or at least know of their whereabouts. His addiction to heroin may be an explanation but not an excuse for the absence of the relationship between him and his children.
The absence of any evidence from the applicant of his knowledge of the circumstances of his children namely their schooling, sports, recreation, their interests and friends or their health or any evidence from them of communicating these issues to him, substantially restricts any consideration of the criteria found within paragraph 9.3(4). It is understood that A is now a member of another relationship and a child has recently been born. It is not known whether the partner of A is undertaking a parenting role of the applicant’s children.
Whilst it would be in the best interests of the applicant’s son, he being an infant, to have a relationship with him, as his father, I am not satisfied that ideal is sufficient to persuade me that no more than minimal weight can be attached in favour of the applicant under the criteria found at paragraphs 9.2 or 9.3 insofar as his children are concerned. I acknowledge that the applicant has extended family in Australia. However, his relationship with extended family was non-existent for many years. Therefore, little, if any weight can be levied in the applicant’s favour under the primary consideration in paragraph 9.2. The impact on his immediate family if his visa is cancelled will be assessed below.
International non-refoulement obligations
The last primary consideration is paragraph 9.4, namely, whether there are any international non-refoulement obligations raised by the applicant. There is no evidence that such obligations apply to the applicant.
Other considerations – visa holders
The criteria at this part commences at paragraph 10. The relevant considerations in this review are the effect of cancellation of the person’s visa on his immediate family in Australia and the extent of any impediment the applicant may face if returned to Vietnam. The remaining parts, namely the impact on Australian business interests and the impact of any decision not to cancel a visa on the Australian community, including victims of the applicant’s criminal behaviour need not be considered. He has no business interests and he has lived on the fringe of the Australian community for many years. The impact on his victims (of heroin trafficking) is not known.
The applicant’s extended family in Australia comprise a number of aunts and uncles and his grandparents. I do not know whether members of his extended family are Australian citizens or whether they are permanent residents or have a right to remain here indefinitely. His mother remains a resident of Vietnam. She has remarried and has 2 daughters of that relationship. He has never known his father. Issues concerning the applicant's children, who are Australian citizens, have been discussed earlier.
The applicant’s aunt, Thuy Nguyen completed a statement on 15 March 2013 (Exhibit A3) and gave evidence. She is the sister of the applicant's mother.
Ms Nguyen said that she regarded the applicant as her son. Despite him living with her for a considerable period, she said that she did not know that he had committed drug offences and was a drug addict. She said he was a good boy when he arrived in Australia, he attended school regularly and displayed good behaviour. She did not know why he left home.
When members of the family learnt in 2011 that the applicant was in gaol and had been convicted for drug offences, she said (and recorded also in her statement) that the family resolved to save him. She said he did not offend before he arrived in Australia and she did not think that he would offend again if he was given another chance.
In cross-examination, Ms Nguyen said that she knew nothing about the extent of the applicant's drug offending. When each offence was read to her she denied any knowledge of it. Additionally, she knew nothing about the positive urine tests in gaol or him being found in possession of drug paraphernalia. She knew nothing about the aggregate period of time that he had spent in gaol nor did she know when he commenced use of heroin. She was not aware of the number of occasions the applicant had relapsed into drug use.
Ms Nguyen said that her father (the applicant’s grandfather), was a strict person and the applicant had issues with him. She also understood that the applicant had ceased working at the family clothing business but did not know that his uncle had also been strict with him. She was not aware that the applicant had been in gaol since August 2010 (resulting from a conviction and sentence in May 2010). She learnt that the applicant had used heroin after she was informed by other family members to whom the applicant had confessed whilst in Immigration Detention. She said the family could not support him when he was using heroin because they did not know where he was and did not know that he was an addict. She said the risk of the applicant being deported was a great shock to the family and all family members are prepared to support him if he is allowed to remain in Australia.
Thieu Nguyen is married to another of the applicant's aunts. He gave evidence in this review and provided a statement dated 12 March 2013 (Exhibit A4).
In his statement, Mr Nguyen said that he, like the applicant, escaped as a refugee from Vietnam, he grew up without parental love which brought many anxieties and confusions.
In evidence, he said that he first had contact with the applicant in September or October 2011 at the Port Phillip prison. He said that the whole of the applicant’s extended family is prepared to support him. He said all family members live within a 5 kilometre radius.
Mr Nguyen said since this application was made, he has spent a considerable period of time with the applicant and has learnt about his background. He and his wife had decided to support the applicant (they also attended the hearing at the RRT). Mr Nguyen said that he would personally accept responsibility for the applicant and for his education.
Mr Nguyen said the applicant realised for the first-time how close he had become to being deported when he was about to be taken to the airport in December 2012. He said the applicant then made a commitment to stop taking drugs.
He regarded the applicant as a good boy. He also understood that the applicant did not tell him and others about his offences because it would cause distress to family members, especially his grandparents. Mr Nguyen said family environment is important and if the applicant is allowed to stay, he will correct his life and will be given guidance by the family. He will also be given stable accommodation.
In cross-examination, Mr Nguyen said that the applicant’s grandfather was strict and was regarded as being the head of the family. He said the applicant found it difficult to accept discipline and he left home. He had also fallen out with an uncle because of discipline.
Mr Nguyen said that he was aware of the offences committed by the applicant and also of the positive urine tests in prison. He said he was also aware that the applicant had been found in possession of drug paraphernalia and Corrections Victoria had found him to be at a high risk of reoffending. Mr Nguyen said the family will finance treatment for the applicant and if he is deported they will also remit money overseas to fund treatment. However, it was his view that the applicant needed to remain in Australia and be emotionally supported by his family.
Other family members resident in Australia also provided written statements in support of the applicant. Each statement contained similar sentiments expressed above with respect to the desire to have the applicant remain in Australia and the preparedness of the family to unite in support of him.
I have no reason to doubt that the witnesses who gave evidence and those that provided statements would be prepared to offer support and emotional comfort to the applicant if he was permitted to remain in Australia. If he does remain, the chances of relapse, by the family’s support, together with honouring his parole obligations, might cause him to refrain from drug consumption and dealing. However, the applicant effectively abandoned his family for many years whilst he was using and trafficking heroin and I am not confident that he would respond to the positive support that he would be given.
I am also concerned that the applicant sought assistance from his family at the time that he commenced to realise that he was at risk of being deported. Attempts to secure him remaining in Australia were made by representations to the Department, the Minister, the RRT and the Federal Magistrates Court.
The applicant is now 37 years of age. He left Vietnam as an infant at the age of 12. Whilst accepting that most of his adult life has been spent in Australia, if he were to return to Vietnam, he would not have any difficulty with the language. I also acknowledge that the country has probably changed considerably during his absence (although he has returned on 3 occasions) and he may experience a period of readjustment. However, his mother and step sisters continue to live in Vietnam and he could reunite with them.
There was no evidence of any cultural impediment by returning to Vietnam and previous assertions by him to the RRT that he would suffer discrimination as a Catholic, as the son of a former member of the South Vietnamese Army and as a deportee were conceded as no longer relevant. There was no evidence about whether the applicant would be at risk of unemployment or economic insecurity should he return.
I do give the applicant some weight with respect to the absence of contact with family members in Australia and some uncertainty, if only temporary, by him returning to Vietnam. He is a young man and should be able to adjust, especially with the assistance of his mother.
However, I am satisfied that the adverse weight to be levied against the applicant with respect to his criminal activities is considerable and substantially tips the balance in favour of the decision under review being affirmed.
DECISION
The decision under review will be affirmed.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member............................[sgd].................................
Associate
Dated 5 April 2013
Date(s) of hearing 25 March 2013 Counsel for the Applicant Mr G. Hughan Advocate for the Applicant Mr C. Bulos Solicitors for the Applicant Hymans Solicitors Counsel for the Respondent Ms S. Burchell Advocate for the Respondent Mr B. Petrie Solicitors for the Respondent Clayton Utz
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