Dong and Minister for Immigration and Citizenship

[2008] AATA 806

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 806

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2008/2867

GENERAL ADMINISTRATIVE DIVISION		)
Re		TAN THANH DONG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member M D Allen

Date11 September 2008

PlaceSydney

Decision The decision under review is affirmed.

..................[sgd].....................

M D Allen
  Senior Member

CATCHWORDS     

Immigration and citizenship – deportation of non-citizen – long criminal history – protection of Australian community outweighing all other factors – decision under review is affirmed.

LEGISLATION

Migration Act 1958. Ss 499, 501(2), 501(6), 501(7)(c)

Ministerial Direction No. 21

CASES

Re Stone and Minister for Immigration and Ethnic Affairs (1980-81) 3 ALN; N129

REASONS FOR DECISION

11 September 2008   Senior Member M D Allen

1.         The Applicant is a Vietnamese army deserter who was granted permanent residence in Australia as the holder of a refugee visa.

2. The Applicant first arrived in Australia in 1985. From 1987 onwards he has engaged in criminal activity, which has seen him serve several periods of imprisonment. On 11 December 2002 he was sentenced in the District Court at Adelaide to eight years imprisonment, following a plea of guilty to two counts of armed robbery. As a result of that conviction and sentence, the Respondent cancelled the Applicant’s visa pursuant to Ss 501(2) of the Migration Act 1958.

3. Subsection 501(2) Migration Act states:

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.

4. Whereas Ss 501(6) Migration Act states, inter alia:

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)); or

(b).....

(c)Having regard to either or both of the following:

(i)  The person’s past and present criminal conduct;

(ii)  The person’s past and present general conduct;

The person is not of good character;

….

Substantial criminal record is defined by paragraph 501(7)(c) of the Migration Act 1958 as where a person has been sentenced to a term of imprisonment for 12 months or more.

5. In exercising the discretion whether or not to cancel the Applicant’s visa, I am required pursuant to S499 Migration Act to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.  Those directions are to be found in Ministerial Direction No. 21.

6.     Direction No. 21 states that there are three primary considerations to the exercise of my discretion, and 11 other considerations which may or may not be relevant.  The primary considerations are:

(a)The protection of the Australian community;

(b)The expectations of the Australian community;

(c)The best interests of any child or children.

THE CHARACTER TEST

7.     There is no doubt that the Applicant fails the character test.  Apposite are the remarks by Bishop DCJ, when sentencing the Applicant to eight years imprisonment on 11 December 2002, namely:

“Your offending began in 1988 and 1989 when, for offences of unlawful wounding and wounding with intent to do grievous bodily harm, you were imprisoned for 15 months and four years 3 months, respectively, in the Supreme Court.  Offences of dishonesty and possession of heroin, forging a prescription, carrying an offensive weapon (three offences) and possession of a firearm without a licence followed, for which offences you were either imprisoned, received a suspended sentence or were fined.  You have offended in nearly every year since coming to Australia.” 

8.     In addition to the offences nominated by Bishop DCJ, the Applicant’s criminal record shows a series of minor offences dating from 1988 to 2002 which offences, by their regularity and nature, illustrate a pattern of offending and contempt for the law.

9. There can be no doubt that the Applicant fails the character test as set forth in S501(6) of the Migration Act. 

PROTECTION OF THE AUSTRALIAN COMMUNITY

(a)      Seriousness of the Applicant’s Conduct

10.     There is no doubt that the offences committed by the Applicant were serious.  The offences themselves carried a maximum penalty of life imprisonment.  Bishop DCJ apart from allowing a discount of 20 per cent for a plea of guilty stated:

“These two offences were clearly serious, having regard to the number of offenders involved, the wearing of masks and the carrying of weapons, the vulnerability of the victims and the need for general deterrents in protection of the public. 

As judge David remarked when sentencing Phong Thanh Nguyen “the use of knives and guns to rob and terrify innocent members of the public is something that is now disturbingly prevalent”.

11.     Previously, the Applicant had been sentenced in 1988 and 1989 for wounding with intent to do grievous bodily harm and unlawful wounding which are of themselves serious offences.  It is also noteworthy that following imprisonment for those offences, the Applicant was warned that the commission of any further offences would lead to the question of his being deported. 

(b)      The Risk of Recidivism

12.     To my mind, the Applicant is at risk of re-offending.  His past criminal history shows a consistent pattern of re-offending and, despite the Applicant’s protestations to the contrary, I regard any hope of his avoiding subsequent criminal behaviour as a triumph of hope over experience. 

13.     I am strengthened in that view by the opinion of psychiatrist Dr Ellis, who is of the view that the Applicant is a moderate risk of recidivism.  Although the Applicant sought to involve substance abuse as an excuse for his criminal behaviour, I note the psychiatric report obtained prior to his sentencing in the South Australian District Court states:

“Mr Dong reported that these current offences occurred in context of intoxication with minor tranquilisers.  Whilst these could be expected to produce a disinhibitting effect as well as memory impairment, it is apparent from Mr Dong’s history that he was well familiar with the effects of these drugs, having abused them over a period of time in similar quantities.  Therefore, it is unlikely that he experienced any novel effect from the tranquilisers and therefore unlikely that his behaviour would have been significantly out of character for him.  Although, in my opinion, the tranquiliser might have produced a disinhibitting effect in which he was more easily lead by his associates, there is insufficient evidence to indicate that he was unable to form the requisite intent to commit the alleged offences.”

14.     In passing, I note that both psychiatrists dismissed any suggestion of the Applicant suffering a post traumatic stress disorder.

15.     It is true that the Applicant has in the past been addicted to morphine and, whilst in prison following his most recent crimes, commenced and continues to undertake a methadone programme.  Nevertheless, he also admitted to using cannabis whilst incarcerated and he continues to drink alcohol (albeit only on weekends).  The use of cannabis in prison shows that the Applicant has not entirely abandoned the use of illicit substances.

16.     Currently the Applicant has support from a Vietnamese community organisation in Adelaide, and they have offered him employment as a drug counsellor for 10 hours a week.  Notwithstanding this, I am not convinced that, if he is stressed by living conditions or again associates with drug users, he will not relapse into heroin use or revert to criminal activities.  All his history points to this, despite the prior warning regarding deportation and I find that it is more likely than not that the Applicant will re-offend.

(c)      General Deterrent

17.     Obviously should the Applicant be deported, that fact will send a strong message to like minded persons within the Vietnamese community in South Australia.  This combined with the fact that the Applicant has previously been warned that subsequent criminal behaviour may lead to his deportation requires that the deterrent aspect of visa cancellation should have its full force and effect.

EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

18.     The seriousness of the Applicant’s criminal conduct and the length of time during which he has engaged in such conduct, even after a warning, is such that reasonable members of the Australian community would expect that his visa be cancelled.  In Re Stone and Minister for Immigration and Ethnic Affairs (1980-81) 3 ALN; N129 at N132 para 4, the Tribunal (Davies J) said:

“The seriousness of the crime is an important consideration.  The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism. 

The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community.  Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry.  The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia. ….”

19.     For the Applicant, it was submitted that a reasonable member of the Australian community would take into account his background.  There is no doubt that in his formative years the Applicant did experience hardship.

20.     Born in 1959 the Applicant’s father was employed as a policeman by the then government of the Republic of South Vietnam.  When the South was conquered by North Vietnamese forces, the Applicant’s father and elder brother were sent to a “re-education” camp and the Applicant then aged 16 was forced to leave school.  In 1977 he was conscripted into a labour corp, and in 1978 was conscripted into the Vietnamese army and served in Cambodia.

21.     Whilst on military service in Cambodia, the Applicant deserted and found his way to a refugee camp in Thailand.  Although the evidence of Ms Le, a well-known refugee advocate, suggests he was isolated in a particular part of that camp, being a Vietnamese army deserter, he managed to form a liaison with a Vietnamese woman by whom he had a son.

22.     The Applicant’s son accompanied his mother to the United States and the Applicant has lost contact with them.  It was while in the refugee camp that the Applicant was introduced to heroin. 

23.     In 1985 the Applicant first arrived in Australia.  He found employment at the Mitsubishi motor vehicle factory in Adelaide and lived with a friend who had nominated him for resettlement.

24.     During this period he was able to pay for his accommodation, food and a motor vehicle.  There is no record of his being involved in any unlawful activity (including drug use) during his first two years in Australia. 

25.     As stated above, the Applicant was convicted in the South Australian Supreme Court on 9 August 1988 and 30 June 1989 of unlawful wounding and wounding with intent to do grievous bodily harm.  Apart from his periods of incarceration, there then follows a regular and sustained pattern of offending against the law.

26.     Significantly, although the Applicant blames some of his offences upon an addiction to heroin for two years, whilst on parole after being discharged from jail following his first period of imprisonment, he refrained from using heroin because, he said, he was on parole. 

27.     Counsel for the Applicant stressed the difficulties that might be occasioned to the Applicant should he be deported to Vietnam.  The report in evidence of Ms Le referred to various problems that may affect deportees to Vietnam but, given its tenor, I regard Ms Le’s evidence as special pleading based on anecdotal evidence.

28.     The Applicant whilst resident in Australia has visited Vietnam on four occasions.  To visit Vietnam he has used a Vietnamese passport which he obtained from the Vietnamese Embassy in Canberra.  He conceded that upon arrival at Saigon Airport he had to pass through both immigration and customs facilities. 

29.     The Applicant has spent periods of three, six, two and a half and one month in Vietnam.  During these times there has been no evidence of any difficulties with Vietnamese authorities.  I specifically reject any claim that upon his return to Vietnam he would be prosecuted as an army deserter.  Likewise, given his periods in Vietnam, I reject Ms Le’s assertions he would have difficulties in readjusting to Vietnamese society and language. 

30.     As Ms Lee conceded in cross-examination, acceptance into Vietnamese society may well depend upon the individual and upon his circumstances.

31.     Currently the Applicant’s mother still lives in the hamlet of Hoc Monh where the Applicant was born, and he has stayed with her on his visits to Vietnam.  Although in the past the Applicant’s mother has experienced straightened circumstances, she now owns her own home and according to the Applicant is “comfortable”.

32.     The Applicant has siblings in Vietnam whom he says will initially render him support if he is returned.  Hoc Monh is some 12 kilometres from Saigon and people from the hamlet commute by bus to Saigon for employment.

33.     The Applicant has skills which will enable him to find employment.  He can drive a motor vehicle and operate a forklift.  As stated his home hamlet is within commuting distance from the major city of Saigon.

34.     Counsel for the Applicant submitted that it would be most unlikely that the Applicant would be accepted into any methadone programme in Vietnam, and thus was at risk of reverting to using heroin with consequent risks of offending against Vietnamese law.

35.     I accept that the chances of the Applicant entering into any methadone programme in Vietnam are at best problematical, even though such programmes exist.  On the other hand, I note that the Applicant has been able to refrain from heroin use if required, for example when on parole after his first period of imprisonment.

36.     More to the point however, is the information from the Respondent and the Applicant as to the attitude of Vietnamese authorities to heroin use.  Penalties for trafficking heroin are draconian and trafficking is constituted by possession of 100 grams of heroin or more.  On the other hand, possession for personal use is regarded as a social evil, rather than criminal, and efforts are focussed on rehabilitation. 

37.     I accept that rehabilitation for drug use may, if initial efforts in the community fail, involve compulsory admission to a rehabilitation centre, apparently for up to two years.  When considering rehabilitation vis-a-vis methadone, what must be kept in mind is, as agreed by psychiatrist Dr Ellis, that methadone treatment is in reality substituting one addiction for another.  I am therefore not convinced that if he were to relapse into heroin use, rehabilitation is not in the Applicant’s best interests. 

38.     Furthermore, there is no guarantee that even in Australia the Applicant might not relapse into drug use.  His would be employment would bring him into contact with drug users, and he would be exposed to stressors such as seeking full time employment, accommodation and periods of idleness when not employed.  There is also possibility of companions who may use drugs. 

39.     All in all, I cannot see that the expectations of the Australian community would be that it was unwarranted to return the Applicant to Vietnam.

OTHER CONSIDERATIONS

40.     There is no evidence that any of the other considerations discussed in Direction 21 have any application in this applicant’s case, save and except that he had previously been warned that future offending may lead to his future deportation.  There are no children to consider and there is no evidence that the Applicant would be subjected to any persecution as a result of his being a former refugee or an army deserter.

41.     Given the seriousness of the Applicant’s past conduct, including the gravity of his crimes and his long criminal history, together with the very real risk of his re-offending, I find that the protection of the Australian community out weighs all other considerations and thus the decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.  

Signed:         ...................[sgd].............................................................
  Associate

Dates of Hearing  1 and 2 September 2008    
Date of Decision        11 September 2008
Counsel for the Applicant               Mr L Karp      
Solicitor for the Applicant                Ms J Buss, Legal Aid
Solicitor for the Respondent           Mr A Chand, Clayton Utz