Duong and Minister for Immigration and Multicultural Affairs - [2002] AATA 460

DECISION AND REASONS FOR DECISION [2002] AATA 460

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoQ2001/217

GENERAL ADMINISTRATIVE DIVISION          )
           Re      THANH HAI DUONG
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Honourable RNJ Purvis, QC, Deputy President

Date14 June 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review

[sgd] The Hon. RNJ Purvis, QC
DEPUTY PRESIDENT
CATCHWORDS - IMMIGRATION - Deportation - Criminal conviction drug dealing- oral warning given before next offence - extensive criminal history - whether recidivism likely - whether likelihood of hardship if deported- community expectations – whether prospect of indeterminate detention 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

14 June 2002 The Hon. RNJ Purvis, QC, Deputy President

This is an application by Thanh Hai Duong for review of a decision, made on 13 December 1999 and advised to the applicant on 6 January 2000, by a delegate of the Minister for Immigration and Multicultural Affairs under sections 200 and 201 of the Migration Act 1958 ("the Act"), ordering the deportation of the applicant from Australia. The deportation order was based on convictions for offences of unlawfully supplying a dangerous drug (heroin) committed between 30 April 1993 and 14 September 1993 (six counts).
The applicant lodged an application for review pursuant to section 500 of the Act in this Tribunal on 16 March 2001. The applicant also lodged an application for an extension of time within which the application for review could be filed. The application for extension of time was approved and the matter heard by the Tribunal on 22 August 2001 in Brisbane. The then Presiding Member being no longer able to determine the matter, the parties consented to the Tribunal being reconstituted and a decision being reached on the basis of the transcript of proceedings being read together with the exhibits and the submissions made on behalf of the parties.
Mr M Brady of Counsel appeared for the applicant and the respondent Minister was represented by Mr B Cramer, Solicitor of Messrs Blake Dawson Waldron. The applicant provided a written statement and gave oral evidence at the hearing. His sister, Duong Bach Tuyet, gave evidence by telephone. An interpreter, Mr Tri, assisted both witnesses.
The following documents were tendered in evidence before the Tribunal:

Exhibit 1 "T" Documents
Exhibit 2 Parole Order
Exhibit 3 News Flyer – MOU between Australia and Vietnam
Exhibit 4 Human Rights and Equal Opportunity Commission Report
Exhibit 5 Amnesty International Report 2001
Exhibit 6 US State Department Report on US/Vietnam Relations
Exhibit 7 Statement – Thanh Hai Duong – 22 August 2001

4A After the hearing had been concluded and under date 7 June 2002, the representative of the Applicant forwarded to the Tribunal a number of documents. They are:

letter from the Applicant to Morag McDonald, his solicitor;
certified copy of Certificate of Participation in the Inmate Support Network at Arthur Gorrie Correctional Centre dated 2 march 2001;
certified copy of Buddy Training Certificate dated 29 October 2001;
certified copy of Result of Assessment, TAFE Queensland dated 4 April 2002.

The Tribunal has received the material into evidence, marked it as an Applicant's exhibit, Exhibit A and taken it into its consideration in arriving at the decision.

The applicant, Mr Duong, was born in Vietnam on 22 September 1950. Mr Duong came to Australia in 1989 as a refugee under Australia's Humanitarian Program. On 30 January 1995 the applicant was convicted in the Queensland Supreme Court at Brisbane on six counts of unlawfully supplying a dangerous drug (heroin) to which counts the applicant pleaded guilty. The applicant was sentenced to a total of two and a half years imprisonment with a recommendation that he be considered for parole after serving a period of six months. As at the date of the commission of the first of these offences, the applicant had been resident in Australia for just under four years.
These convictions brought the applicant within section 200 of the Act which states:
"The Minister may order the deportation of a non-citizen to whom this Division applies."

Section 201 of the Act states:
"Where:
(a)       a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)       when the offence was committed the person was a non-citizen who:
(i)        had been in Australia as a permanent resident:
          (A)      for a period of less than 10 years; or
          (B)      for periods that, when added together, total less than 10 years; or
(ii)        was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A)      for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B)      for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(c)       the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person."

By reason of the above convictions the applicant came to the attention of the respondent. The applicant was interviewed on 3 July 1996 by a delegate of the respondent (T22, p178) and advised of the possibility of his being deported. At that interview the applicant stated that he had no further charges pending against him. This interview was followed up, on 13 September 1996 by the respondent with the issue of an oral and a written warning advising the applicant of the likelihood of deportation if the applicant re-offended (T16, p70).
Subsequent to the above, the applicant was convicted on six counts of supplying heroin and one count of possession of a motor vehicle used in connection with those offences on 26 August 1997. The applicant again pleaded guilty and was sentenced to a total of five years imprisonment, which was, on appeal, reduced to three years imprisonment, this on the basis of the applicant's co-operation with the authorities (T16, p88). On 13 December 1999, the respondent signed a deportation order pursuant to section 200 of the Act (T14, p36) in respect of the applicant consequent on the applicant's convictions of 30 January 1995.
Section 502 of the Act states:
"(1)     If:
          (a)       the Minister, acting personally, intends to make a decision:
(i)        under section 200 because of circumstances specified in section 201; or
(ii)       * * * * *
(iii)to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33 (2);
in relation to a person; and
(b)       the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;
the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.
(2)       A decision under subsection (1) must be taken by the Minister personally.
(3)       If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made."
On 6 January 2001, the respondent issued a declaratory certificate in purported compliance with section 502 of the Act, thereby excluding review of the decision by the Administrative Appeals Tribunal ("the AAT"). However, by virtue of the Decision in Karm Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426 wherein a similar purported declaratory certificate was held to be invalid, the respondent consented to the extension of time for the applicant's lodgement of an Application for Review by the AAT.
The factors to be considered in the exercise of the power in section 200 of the Act are provided in the Ministerial Direction "General Direction – Criminal Deportation – No. 9". 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 matter. The two aspects of community expectations are that the community will be protected and not put at risk and that non-citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
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. A number of other considerations are also to be taken into account in considering whether or not to deport a potential deportee.
Seriousness and Nature of the Offence
The Australian community as a whole has little or no tolerance of the use of illegal narcotic substances. Those who trade in substances by way of sale or supply to others are regarded as very serious offenders. The General Direction states that the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing in, or selling of illicit drugs is considered by the Government to be offences which are very serious.
Counsel for the applicant has submitted that in this matter, the applicant engaged in the illicit sale of heroin in respect of both the 1995 and 1997 offences "merely" or "only" to satisfy his own habit. The applicant's initial need for heroin had resulted from an attempt to deal with the pain of serious injuries sustained when the helicopter he was a passenger in was shot down during the Vietnam War thirty years previously. Despite several attempts to break the habit, at least prior to the later charges, the applicant failed to do so.
In respect of the 1995 charges, the Tribunal acknowledges that a non-parole period of six months was imposed and that the offence was not at the extreme end for gradations of seriousness for such offences. The Tribunal also acknowledges that the assistance the applicant provided to the police with regard to the 1997 charge was extensive although it has not viewed the relevant sealed affidavit said to contain relevant information as to the assistance afforded.
As was commented upon during the course of the hearing, the Tribunal notes that the 12 sales in total of the illicit drug were all made to an undercover policeman and six sales were made before the applicant was initially arrested. The respondent's representative could not elaborate upon or provide an explanation as to the sequence of these events.
However, on sentencing the applicant with regard to the 1995 offences, Judge Dowsett made the following remarks (T16, page 76 (Annex F, page 1)):
"I treat the offences as examples of repeated misconduct involving the supply of drugs, and I infer from what has been said to me about his admissions at the time, that these were probably not isolated incidents although, of course, I must sentence him only in respect of them. The supplies were to undercover police officers, but it is reasonable to infer from what he said that he had supplied to other people. In other words, it cannot be said that incidents of this kind would not have occurred had he not been solicited by the undercover police agent."
Comments made by the Appeal Court with regard to his convictions in 1997 indicated that the Court viewed the convictions as limited to the offences for which he had been charged, that is, supplying to the undercover police officer. (T16, page 81, Annexure F). The Court went on to state:
"The worst aspect of this case ….. is that the applicant committed these offences even before his earlier sentences had expired and whilst he was on parole in respect of them ….. This makes the case much more serious than a first conviction for supply."

Risk of Recidivism

The deportable offence is not the first offence for which the applicant has been convicted. His criminal history reveals convictions between June 1991 and June 1994 for burglary and attempted burglary, theft, unlawful possession and possession of property suspected of being stolen. In addition, his credit has been brought into issue. During his interview with officers from the respondent's office on 3 July 1996, the applicant stated that he would not offend again. On 22 October 1996, the applicant was charged with six charges of supplying a dangerous drug (heroin), the offences occurring between 20 June 1996 and 11 September 1996. These offences, as has been already noted, were committed whilst the applicant was on parole.
A false answer to the direct question, which the applicant appeared to understand, persuades the Tribunal to prefer the evidence demonstrated by the applicant's actions and causes it to hold reservations as to the reliability of his oral evidence.
It was submitted on behalf of the applicant that the drug offences were committed to feed the applicant's own habit. It was also claimed that the applicant has now overcome his addiction and been drug free for a period slightly less than five years, although during an 18 month period of parole, heroin was detected in the applicant's body by a random positive urine test (T16, page 85). It is noted that the applicant denied heroin use at that time. The Tribunal also notes that for most of the time, when the applicant was apparently not using drugs, he was in incarceration in Vietnam, or in prison or in immigration detention in Australia. In addition, the applicant's habit is of about 30 years standing during which time, by his own admission, he has been unsuccessful in giving up its use despite several attempts.
On all of the evidence before it, the Tribunal is of the view that, given the length of the applicant's criminal history, his heroin addiction, his disregard for significance of the punishments imposed upon him and uncertainty as to his credibility, there is a considerable risk of the applicant committing further offences of the kind reflected in the conviction which led to the decision under review.
General Deterrence
The Tribunal is further of the view that the making of a deportation order and it being communicated to the wider community, carries a significant deterrent effect. If communicated to persons residing in Australia or contemplating migrating to this country, such information may well prevent the commission or attempted commission of many offences.
In this instance the applicant cannot say that he did not know of the likelihood of deportation as a result of his continued dealings with drugs. Instead, he chose to ignore a verbal warning given to him and committed the offences for which he was convicted in 1997.
The Tribunal is not unmindful of the fact that deportation of the applicant in this matter would have the effect of informing his immediate circle of acquaintances, those with whom he had criminal dealings, and his family (although it is not suggested that the members of his family have any criminal connections) that deportation would or could be the result of the commission of these sorts of offences. However, as it is probable on the evidence that the applicant was not known widely within the criminal or general community, the Tribunal does not regard the deterrent factor as one of the major considerations in this matter.
Hardship suffered by the Applicant
Counsel for the applicant contended that the applicant had no personal or cultural ties with anyone in Vietnam as he left that country in 1988. It was submitted that if the applicant did return to Vietnam he would have nowhere to live, no money and no employment. In addition, it was said that other factors in this matter took it outside the "run of the mill" of deportation cases. The Tribunal notes that there is no such thing as a "run of the mill" deportation case. Each application is to be considered on its own merits.
It was suggested that the applicant might face a hostile reception by the Vietnamese Government if he was allowed into that country. The applicant had had close ties with the South Vietnamese regime during the Vietnam War because of his service in the South Vietnamese Air Force and because of the fact that all of his family supported the South Vietnam regime. In addition, on account of the applicant attending a course in the United States related to his Air Force employment, he may have been or be suspected of being a spy. The applicant spent an extensive period of incarceration (seven years) in a communist "re-education" facility. The applicant managed to escape from Vietnam an issue, it was submitted, that may be of some concern to the present communist regime in that country.
Mr Brady on behalf of the applicant referred to a Human Rights and Equal Opportunity Commission Report (Exhibit 4) in order to illustrate the issue of hardship relating to the amount of time the applicant might have to spend in deportation custody prior to his being returned to Vietnam. This, it was argued could arise from the possible refusal by the Vietnamese government to accept the applicant back into that country. Reference was made to the possibility that the applicant might fall into the category of those who pose a threat to the national security and the safety of the Vietnamese society. It was contended that the "difficulties" facing the Minister in organising the applicant's deportation might not be overcome in the foreseeable future. The prospect of indeterminate detention was therefore a real possibility for the applicant.
In response, the respondent's representative conceded that the applicant was likely to suffer emotional hardship if he was deported to Vietnam because of his lack of family ties in Vietnam. However, it was also said that the applicant did not have any particular social ties in Australia, nor had he had, or did he have any significant involvement in the Australian community. The applicant had spent his formative years in Vietnam, did not have any or any significant assets in Australia and had not had significant periods of stable employment as a consequence of which he might say that he had contributed to the Australian community.
The Tribunal notes that the applicant advised in a report of his interview with a delegate of the respondent in 1999 that his wife still resides in Vietnam. In that interview he stated that he had written to his children in Vietnam and wanted to bring them to Australia (T16, page 54, para 7) but later, in the same report, stated in response to a question regarding his possible deportation that he had not contacted his children for a long time and had not supported them (T16, page 55, para 17). These contradictory statements further evidence the unreliability of portions of the oral testimony of the applicant.
The respondent's representative referred to Exhibit 3 which was an article concerning a Memorandum of Understanding ("MOU") entered into by Australia and Vietnam with regard to the resettlement of former Vietnamese citizens back into Vietnam. However, Mr Cramer on behalf of the respondent could neither provide a copy nor provide details of the actual MOU, the contents of which he said, were confidential. The Tribunal is not able to conclude from this document whether, if the applicant is to be deported to Vietnam, such deportation will or will not be facilitated in the near future.

Section 206 of the Act confirms the validity of a deportation order despite any delay in its execution. 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 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 para 12), the length of detention does not itself destroy the validity of the detention or the decision to deport (see Vo (supra)).
The Tribunal has considered the submissions put forward by the applicant as to the possible hardships he would face if deported. It is aware, on the basis of the evidence before it, that the governments of both Australia and Vietnam, are conscious of the problems caused by prolonged delay in matters of deportation and are working towards a resolution of the same.
The Tribunal is not persuaded that the hardships the applicant contends he is suffering or will suffer are sufficient to outweigh the primary considerations relevant in this matter, namely, the expectations of the community and the need to protect the Australian community. The applicant was warned that he would be deported if he re-offended and was adamant that he had changed his lifestyle when in fact he had not done so. In fact, he chose to re-offend, not once but on six occasions. In addition, he chose to conceal the truth.
Hardship suffered by others, including the applicant's family
The applicant has no child resident in Australia, no business ties and no particular social relationships in this country. However, the applicant's sister, Duong Bach Tuyet told the hearing that she and her other two married sisters, together with their husbands and children, migrated to Australia prior to the applicant and now reside in Melbourne. In 1999 the applicant's elderly parents also migrated to Australia and live in Melbourne in close proximity to Duong Bach Tuyet. They will all experience differing degrees of hardship in the event of deportation.
Mr Duong Bach Tuyet expressed concern that if the applicant was deported he would have no family support in Vietnam, would be unable to find a job, and the deportation would cause great concern and shame to his parents. The applicant himself advised the hearing that as the eldest son it was culturally important that he be given "one more chance". This point was not elaborated upon in the evidence and by itself does not assist the Tribunal in arriving at the correct or preferable decision.
The applicant chose to live in Queensland, moving here in 1992, and from the evidence, does not and did not maintain constant or regular contact with his family in Melbourne. In addition, he provides no financial or emotional support for them.
On the basis of all of the evidence tendered before the Tribunal, the Tribunal does not find the hardship likely to be suffered by the applicant's family members or the applicant such as to outweigh the primary considerations.
Community Expectations
The Australian community expects that persons from other countries entering Australian and permitted to reside here will comply with the community standards and obey the laws of the country. For serious offences of the kind for which Thanh Hai Duong was convicted, and in all the circumstances of this matter, the expectation of the Australian community would be, and is, that the exercise of the relevant statutory power be in favour of the making of a deportation order.
Having regard to all the above matters, the Tribunal is of the view that the decision under review should be affirmed. The decision under review is affirmed.
I certify that the preceding 41 paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 August 2001
Date of Decision       14 June 2002
Counsel for the Applicant              Mr M Brady
Solicitor for the Respondent    Mr M Cramer, of Messrs Blake Dawson Waldron