Duong and Department of Immigration and Multicultural Affairs

DECISION AND REASONS FOR DECISION [2001] AATA 422

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/847

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TO NGUYEN DUONG
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon. C R Wright Q.C., (Deputy President)

Date18 May 2001
PlaceMelbourne

Decision      The decision under review is affirmed.
  (Sgd) Hon. C R Wright QC.,
  Deputy President
CATCHWORDS
Immigration – deportation – applicant arrived in Australia in 1987 – first conviction 1988 – criminal history - 12 month imprisonment armed robbery – single no children – risk of recidivism.
Migration Act 1958 – ss.200, 201
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634
Mairana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119
Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 17 ALR 36
Yung v Minister for Immigration and Multicultural Affairs, 21 October 1998 (unreported)

REASONS FOR DECISION

18 May 2001 The Hon. C R Wright Q.C., (Deputy President)

This is an application to review a decision by a delegate of the Minister for Immigration and Multicultural Affairs made on 2 May 2000 pursuant to the provisions of s.200 of the Migration Act 1958 ("the Act"), to deport the applicant from Australia on the basis of his conviction for armed robbery on 19 February 1996, in respect of which he was sentenced to 12 months imprisonment.
The applicant was served with the notice of deportation on 13 June 2000, and on 11 July 2000 he lodged the present application for review.
The case was heard before me in Melbourne on 1 May 2001. The applicant was represented by Ms Sharn Coombes, and the respondent was represented by Ms Emily Nance. Oral evidence was given by the applicant, his father, Mr. Ly Thap Ngu, his mother Mrs. Duong To and his sister Miss Duong Lien. Several documents were also taken into evidence. Written submissions were received from both counsel and I have considered these carefully.
On the basis of the material before me, I find the following facts:

(a)The applicant is a Vietnamese National, born in Vietnam on 3 March 1971. His parents are of Chinese origin.
(b)The applicant arrived in Australia on 8 September 1987 in company with his elder brother.   They were both granted permanent residence. Approximately 4 years thereafter, his mother, father and siblings came to Australia after being sponsored by the applicant and his uncle, who was also resident in this country.
(c)The applicant has committed several offences since he arrived in Australia. His first recorded offence of burglary was committed in 1988, in respect of which he was convicted on 3 February 1989.   Since then he has been convicted of a range of criminal offences and has appeared in court in respect thereof on approximately 56 occasions.
(d)His conviction of armed robbery on 19 February 1996 was his first conviction, to result in a sentence of 12 months imprisonment. Since then there have been a number of additional convictions resulting in terms of imprisonment.
(e)The applicant is single and has no children, and has resided principally with his parents when not incarcerated.
(f)On 10 February 1995 the applicant suffered a head injury while escaping from a bus which he had robbed.   As a consequence he suffers from some loss of memory and headaches, but it is clear that these residual disabilities which were initially quite severe, have improved considerably since that time.    There was some dispute at the hearing as to the circumstances in which the head injury was sustained. But I have regard to the following comments made by His Honour, Judge Morrow, when sentencing To for armed robbery and other offences on 19 February 1996.    "I am left in no doubt that the head injury was suffered on 10 February 1995, when the applicant escaped from a bus through the rear window as he was being transported by the driver to a police station because he had tried, and in fact, stolen money from the till in the bus whilst the driver was temporarily absent. During the course of his escape, the applicant fell to the road and sustained the severe head injuries already mentioned." My finding is in accordance with these observations.
(g) The armed robbery offence in respect of which Judge Morrow imposed a sentence of 12 months imprisonment, occurred on 28 June 1995 when the applicant went to a pharmacy in Footscray and presented a forged prescription to a pharmacist.   She contacted the doctor concerned and then refused to prescribe the drug that the applicant had written on the prescription.   She told him to leave the store.   The applicant then threatened her with soft drink bottle, which was nearly full of liquid.   He inverted the bottle and held it by the neck and he struck at her at least 3 times.   One of the blows may have grazed her shoulder but she sustained no significant physical injury. She submitted to the applicant's threats and he went into the dispensary where he stole 3 bottles of temazapam and fled.    A shop assistant who had witnessed the attack attempted to leave the shop to obtain assistance and the applicant also threatened her with the soft drink bottle, although he did not strike her.

Pursuant to s.201 of the Act, a person is liable to deportation if that person commits an offence for which he was sentenced to imprisonment for a period of not less than 1 year, within the first 10 years of commencing residency in Australia as a permanent resident. It is plain that the applicant falls within this provision, and his liability to deportation was not contested at the hearing.
Upon being notified of the applicant's conviction, a delegate of the Minister considered whether or not he should be deported and on 8 January 1997 decided not to deport the applicant, but rather to issue a warning to him that should he come to the Minister's adverse attention again, his deportation status would be reviewed. The applicant was notified of this decision by letter on 13 January 1997, and on that date signed an acknowledgment of the warning which he had received. Notwithstanding this warning, the applicant continued to offend as set out in the chronology hereunder. I do not accept the applicant's claim that he did not fully understand the warning.

Chronology of Offences Subsequent to 13.1.1997

Date Offence Sentence
15.5.97 (1) Fail to answer bail on 18.3.97 (2) Theft (3) Forge prescription for drug of dependence (4) Use heroin (5) Alter forged prescription (6) Indecent assault Convicted and fined aggregate of $950

(7)      Unlawful assault (8) Wilful and obscene exposure in public (9)          Behave in an indecent manner in public (10)     Use indecent language in Public Convicted 6 months imprisonment each charge concurrent.
16.2.98          (1)       Behave in an indecent or offensive manner (2)            Use indecent offensive language      Convicted and fined $150 Convicted and fined $100
27.3.98          (1)      Traffick heroin (2)     Possess heroin (3)   Use heroin (4)          Theft (5)           Forge prescription (6)         Utter forged prescription (7)          Fail to answer bail    Convicted all charges. Community based order for 12 months with conditions
18.5.98          (1) Indecent act with or in the presence of a child under 16    10 months imprisonment
(2)      Use heroin (3)          Behave in an offensive manner in a public place (4)     Indecent assault          1 month imprisonment concurrent on each charge
16.7.98          Carry regulated weaponConvicted.   Fined $500 plus costs
3.8.98 (1)      Use heroin (2)          Traffick heroin         Aggregate sentence of imprisonment 6 months concurrent with sentences presently being served.
11.8.98              Variation of sentence imposed on   27.3.98          Community based order cancelled
25.1.99              Beg alms Convicted, fined $100 and costs
22.4.99          (1)      Handle, receive or retain stolen goods (2)       State false name (3)           Forge prescription    Convicted and discharged
24.6.99          (1)      Traffick heroin (2)     Possess heroin       4 months imprisonment 4 months imprisonment concurrent
13.1.00               Possess regulated weapon Convicted, adjourned to 12.4.2000
6.6.00 (1)      Use heroin (2)          Behave in an offensive manner in a public place          Convicted and fined $250 plus costs. Convicted and fined $200.
18.7.00          (1)      Use heroin (2)          Burglary (3)   Theft (4)        Utter forged prescription (5)           Possess prescribed drugs (6)       Traffick drug of dependence (7)    Possess drug of dependence (8)       Traffick heroin (9)     Fail to answer bail (10)       Use heroin (11)       Resist police (12)     Go equipped to steal or cheat (13)          Traffick heroin (14) Posses heroin (15)           State false name     Imprisonment 24 months concurrent (34 days reckoned as time already served). Non-parole period 10 months.        Convicted and fined $300

The respondent Minister's General Direction under s.499 of the Act, provides that there are 2 primary considerations which are applicable to the consideration of whether or not a permanent resident should be deported. These primary considerations are:-
"(a) The expectation of the Australian community; and
(b)In all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children."

The second of these primary considerations does not arise in the present case.

In addition there are 2 relevant secondary considerations to be taken into account, viz:-
"(a)The degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
(b)The degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation."
These two secondary considerations were the main focus of argument in the present case. As Brennan J, as he then was, said in the case of Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634:
"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case".

Whilst emphasising the significance of the Ministerial policy these observations make it clear that the Tribunal is not confined or fettered by the Minister's Direction and is free and, indeed has the duty, to make its own assessment of how the discretion should be exercised according to the justice of the case by balancing and evaluating the competing issues which have arisen for resolution. In this process so-called secondary considerations may well outweigh primary considerations depending upon the facts of the case (see Aksu v Minister for Immigration and Multicultural Affairs per Dowsett J [2001] FCA 514).

The Minister's direction as to the application of the first of the primary considerations formulated by him is as follows:-
"8. It is the Government's view that the expectations of the Australian community are a primary consideration in determining whether a potential deportee should be deported. Decision makers should have due regard to the Government's view in this respect. There are two aspects to community expectations:
(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia."
In paragraph 9.2.11 of his Direction, the Minister also draws attention to the necessity of ensuring the safety of the more vulnerable members of the community, and draws particular attention to crimes involving drugs and/or violence. The Minister also draws attention to the necessity when assessing the level of risk to the community, of having regard to the seriousness and nature of the crime, the risk of recidivism, and the likelihood that the deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
Among the offences which the Minister lists as "very serious" are, "the production, importation, distribution, trafficking and commercial dealing, or selling of illicit drugs, sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence, armed robbery, serious theft, crimes including sexual assaults against children." It is noteworthy that the applicant has been convicted of offences fitting each of these descriptions.
Paragraph 13 of the Minister's Direction also deals with the risk of recidivism and states that it is the Government's view that a person's previous general conduct and total criminal history are highly relevant to an assessment of that risk. This of course, is a proposition which is not controversial.   The Minister draws particular attention to the following factors as being relevant to the assessment of risk of recidivism:
(a)The person commits a further offence having been warned previously about the risk of deportation.
(b)A person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour.   Significant gaps between convictions may be of significant.
(c)The extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community which the person may reasonably be expected to make.
All of these factors are relevant to the present applicant. He has continued to offend after having been warned. He has a very lengthy list of previous convictions without significant gaps, and there is little, if any, indication that he has undergone significant rehabilitation or is likely to make a positive contribution to the community in the future.
In dealing with the question of "hardship" to the potential deportee, the Minister's Direction draws attention to a number of aspects which are relevant to the present applicant, namely, (a) whether the offender has an ongoing marital or de facto relationship with an Australian citizen or resident (b) whether the potential deportee has spent the greater proportion of his formative years in Australia, (c) the degree and extent of the potential deportee's ties with the likely country of return, (d) the strength of other family social or business ties in Australia, (e) the social ties developed after the liability for deportation arose, and (f) the situation in the country of proposed return, including the overall environment, job opportunities or possibility of additional criminal sanctions.
In respect of the second aspect of hardship that is, "hardship to Australian citizens or permanent residents, including the potential deportee's family," the Minister has included for attention the views if any, of the victim or victims of the crimes committed by the potential deportee. It is plain there have been several victims of the applicant's criminal activity, and it may be fairly assumed that the sexual assaults and the robbery offences have traumatised his victims to some extent. However no evidence was presented at the hearing to suggest that such victims continue to experience adverse effects from this trauma, or have any particular views to express in respect of the applicant's current application for review.
I turn now to discuss a number of matters arising from the Minister's Direction in respect of which some additional comment seems appropriate. As already mentioned the applicant continued to offend, notwithstanding his warning. It is plain from the decision of Mairana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119 @ 123, that offences committed after the triggering offence are relevant to the applicant's status and the question whether or not he should be deported.
The respondent submits that the length of the applicant's criminal record and the seriousness of the offences, particularly those relating to the use of and trafficking in heroin and the sexual offences ought to weigh heavily with the Tribunal in considering the risk which he poses to the Australian community. Reference was made to in Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 17 ALR 36 @ 39 per Brennan J (as he then was) who stated that "The criminal sale of heroin is an offence which raises a strong case for deportation". With respect I agree with this view.
Despite the applicant's protestations that he has learned a salutary lesson from the present proceedings, I assess him as having a high risk of recidivism, both in respect of illicit drugs and sexual matters. The applicant has heroin addiction of long standing and has committed drug offences over an extended period of time.
Counsel for the respondent has described the applicant as "a serial and inveterate offender". I agree with this description. I also agree with the submission that the Australian community would expect that a persistent offender of this kind would not be allowed to remain in the community where his risk of re-offending is at such a high level.
It was submitted on behalf of the applicant that upon his discharge from prison he would return to live with his family, and that they are likely to have a benign and positive influence upon him. I have no reason to doubt the good character and intentions of the applicant's mother, father and sisters, but it is plain from the evidence of his mother, father and sister Lien, that he has given them very little, if any, information about his lengthy criminal history and that they know very little about the serious offences he has committed. His father has remonstrated with him in the past, but obviously with little or no effect. More importantly however, it is plain that when not incarcerated the applicant does not spend all of his time at the family home, indeed it is quite plain that he formed a number of very bad associations with offenders of a similar ethnicity soon after his arrival in Australia, and that he has spent a good deal of time away from home living with one or more of these offenders. I consider it likely that such associations are likely to continue in future, despite the applicant's claim that he will sever ties with his associates when he is discharged from gaol. Having regard to his pattern of offending, particularly since the warning given on 13 January 1997, the applicant's drug dependency and the absence of effective control exercised by family members in the past, I consider that the applicant's risk of recidivism is high. The applicant has contributed very little to the Australian community since he has been here. He was employed for a couple of months after leaving school and has since been receiving social security benefits. Plainly enough his criminal activities must have resulted in significant cost to the Australian community.
Turning to the question of hardship to the applicant, I think it appropriate to return to the matter of his head injury.   When he was sentenced by Judge Morrow in the County Court on 19 February 1996, His Honour had before him a neurological assessment by Mr. Ian Joblin of the Royal Talbot Hospital. Mr. Joblin's report contains the following views :
"Thus, while this man is presenting with significant problems as a result of a somewhat severe head injury and he reported a need to obtain medication as a result of that head injury, one cannot indicate that the head injury directly resulted in the alleged armed robbery apart from providing an apparent motive.   One notes that this man had a history of offending, although not so intense as the present offences.
Basically, therefore, the situation with Duong is one of some concern.   He does have obvious problems as outlined in the material.   Those problems will continue and will probably not be resolved.   In some ways he is a pathetic personality now, having obvious speed difficulties against a background of limited English in any case.   This will continue.   It is difficult to know where this man is headed.   He will need, in my opinion, some continued support because of the possible social difficulties he will have as the result of the symptoms of his head injury.   He has a history of IV drug use. He needs to be encouraged to avoid returning to that although he indicated that he wished to because heroin might assist with the headaches that he still has.   Overall it is a very difficult case in terms of prognosis as I have no doubt that he is going to continue to have difficulties, perhaps more so now in settling back into an appropriate social pattern in the community.   He would also be a very difficult client to supervise through the Office of Corrections organisations.   Given, therefore, his propensity for drug use, anti-social behaviour and his current deteriorated state, the overall prognosis cannot be good.    He does require continued medical attention and hopefully, if he receives what he considers appropriate medication to relieve the headaches, there will be no further basis for offences of this nature.
As indicated, it is a very difficult case simply because the head injury may not be germane to the offence apart from this man's desire for tablets (and he knew exactly which ones) to relieve what heroin in his mind could do for him in terms of relieving the headaches."

The fact that the applicant's head injury was caused by his own conduct in attempting to escape the consequences of his criminal behaviour is not really a factor of significance in the present circumstances. It is however relevant to comment that Mr. Joblin's report was given over 5 years ago, and it is obvious from the applicant's statements in the witness box, and his general presentation as a witness, that the head injury is not a matter a major concern at the present time, although he does have headaches from time to time. It has been suggested that if the applicant were to be deported and return to Vietnam, assistance for his medical and drug related problems would not be forthcoming. The evidence in support of these contentions was unconvincing however, and, based on assessments obtained by the respondent, it seems to me that it cannot be said that appropriate facilities will not be available to the applicant if he returns to his country of origin.
The applicant's father gave evidence suggesting that the family was discriminated against when the Communist regime came to power in Vietnam because of their Chinese ethnicity, but the suggestion that there is any Vietnamese government policy discriminating against ethnic Chinese at the present time has also been contradicted by reports obtained by the Department. It seems likely to me that any discrimination to which the family may have been subject before migrating to Australia was probably based upon the applicant's father's ownership of a factory, which as he said, branded him as a capitalist in the eyes of the Communist regime.
The respondent's "Statement of Facts and Contentions" filed on 28 November 2000 had annexed to it a number of country information reports bearing upon matters now under discussion. Those documents were not formally tendered. There was no objection to them by counsel for the applicant and I regard them as a legitimate source of information to me. Those reports bear out the views that I have expressed above concerning the availability of health and drug addiction services to the applicant in Vietnam, and the possibility of his suffering prejudice and discrimination.
The applicant and his family have all expressed the fear that if he is obliged to return to Vietnam, he will be unable to fend for himself and will die. I have difficulty in accepting this proposition; there is no real suggestion that he is unable to look after himself in Australia and to a large extent he does so. It is also plain that he has no great difficulty with the Vietnamese language, as it was apparent that the Vietnamese interpreter, Mr. Van Tran, had no problems communicating with him and translating for him during the course of the hearing.
The applicant was aged nearly 16 when he arrived in Australia and is now aged 29. His long period of residency in this country is of itself no reason for shielding him from deportation. Indeed there is ample authority for the proposition that deportation may be appropriate in circumstances such as the present. In Yung v Minister for Immigration and Multicultural Affairs, 21 October 1998 (unreported) (Justice Mathews), Her Honour made the following observations:
"Where a pattern of criminal behaviour indicates a likelihood that the person will commit further serious crimes, deportation should be seriously considered, notwithstanding that the person arrived in Australia as a minor. The overriding consideration stressed in the policy statement is the need to protect the Australian community against the criminal behaviour of non-citizens."

I respectfully agree with Her Honour's observations.

It was contended for the applicant that he has no close family ties in Vietnam. The evidence was that his immediate family now resides in Australia. However, it seems to me that there is no reason why previous family and social ties in that country could no be reactivated by the applicant were he to return. Nor do I see any reason to conclude that his prospects of employment in Vietnam would be any less than they are in Australia. Frankly I think he would be a very poor employment prospect in this country. The applicant has worked as a labourer in a shoe factory after he left school, and he has also done some part-time work as a clothes presser.
The applicant first came to this country as a refugee with his elder brother. It is therefore appropriate to consider whether or not his return to Vietnam would be contrary to the Refugees' Convention. In my opinion as reports indicate that he would not face persecution if he were to return, and as he has been convicted of a serious crime, I am of the view that the Refugees' Convention does not save him from deportation.
It is clear from the evidence of the members of the applicant's family that despite his past behaviour, they would like him to remain in this country and will be saddened if he leaves and returns to Vietnam.   It is plain however, that his parents have not found him an easy person to cope with, and it is equally plain that his father has been unable to persuade him to forego his criminal behaviour, major aspects of which he has been successful in keeping from them even to the present time.   Whether or not his continuous criminal behaviour has cast a stigma upon his family in the eyes of their friends and relatives in Australia was not explored in evidence, but I have little doubt that if he were to remain in this country and continue to reside at his parents home he would continue to be a source of concern to them.   I am not persuaded that hardship either to the applicant or his family in Australia provides a sufficient reason to allow him to remain in this country.    I should also say that I am of the view, that if and when, his erstwhile criminal confederates learn of his deportation it may have a significant deterrent effect upon them.    How wide that circle of confederates is, I am unable to say from the evidence.    In my opinion the deportation order should stand and accordingly the Tribunal affirms the decision under review.   I thank counsel for their assistance.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Hon. C R Wright Q.C., (Deputy President)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  1 May 2001
Date of Decision  18 May 2001
Counsel for the Applicant        Ms Sharn Coombes
Solicitor for the Respondent    Ms Emily Nance, AGS

[2001] AATA 422

18 May 2001

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Deportation

Criminal History

Risk of Recidivism