Hoang and Minister for Immigration and Border Protection
[2013] AATA 932
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5365
Re
Tuan Anh Hoang
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin, QC, Deputy President Date 23 December 2013 Place Sydney The Tribunal sets aside the decision under review and substitutes therefor the decision that the visa of Mr Hoang should not be cancelled.
....................[sgd]....................................................
The Hon. Brian Tamberlin, QC, Deputy President
CATCHWORDS
MIGRATION – BB Subclass 155 (Five Year Resident Return) visa – cancellation – character test – substantial criminal record – whether visa should be cancelled – primary considerations – other considerations – decision set aside
LEGISLATION
Migration Act 1958 s 501
CASES
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445
Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141
SECONDARY MATERIAL
Direction no. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
The Hon. Brian Tamberlin, QC, Deputy President
23 December 2013
Mr Hoang seeks review of the decision of the Respondent of 8 October 2013 to cancel his BB Subclass 155 (Five Year Resident Return) visa pursuant to section 501(2) of the Migration Act 1958 (the Act).
The matter has a long and complex history that it is not necessary to set out in any detail in these reasons.
There is no doubt that the Minister’s power was enlivened under s 501 to cancel the visa in this case because Mr Hoang fails the character test on the ground he has a substantial criminal record, having been sentenced to terms of imprisonment of 12 months or more.
The criminal record of Mr Hoang is lengthy and is as follows.
Court Court Date Offence Court Result Campbelltown District Court 4 Oct 1995 Robbery with wounding On each charge: Imprisonment 2 years. Additional term for 2 years. Robbery with striking Robbery in company Imprisonment 1 year concurrent. Sutherland Local Court 15 Apr 1999 Larceny Convicted. Fined $400. Newtown Local Court 19 Jul 1999 Aid and abet vehicle with misleading plates On each charge: convicted. Community service order to perform 150 hours. Goods in custody Carry cutting weapon Goods in custody Convicted. Community service order to perform 50 hours. Larceny Convicted. Released on entering recognizance self $500 to be of good behaviour for 12 months. Uninsured vehicle On each charge: convicted. Fined $150. Unregistered vehicle Possess prohibited drug Convicted. Fined $50. Downing Centre Local Court 27 Oct 1999 Shoplifting On each charge: convicted. Fined $500. Larceny Burwood Local Court 29 Nov 1999 Shoplifting (2 charges) On each charge: convicted. Sentenced to rising of the court. Burwood Local Court 4 Jan 2000 Shoplifting Imprisonment 3 months. Enter prescribed premises of any person without lawful excuse Convicted. Fined $100. Central Local Court 24 Jan 2000 Goods in personal custody reasonably suspected being stolen Imprisonment 3 months. Parramatta Local Court 29 Sep 2000 Larceny (3 charges) On each charge: imprisonment 6 months. Shoplifting Possess prohibited drug On each charge: imprisonment 4 months. Goods in custody Parramatta Local Court 5 Oct 2000 Carry cutting weapon (Call up)
On each charge: imprisonment 4 months.
Goods in custody Aid and abet vehicle with misleading plates Sutherland Local Court 12 Feb 2001 Shoplifting Imprisonment 6 months commencing 15 Sep 2000. Newtown Local Court 22 Oct 2002 Possess prohibited drug (3 charges) On each charge: imprisonment 6 months. Unlicensed On each charge: convicted. Fined $200. Driver/rider state false name or address Sydney District Court 3 Jun 2004 Supply prohibited drugs on an ongoing basis Imprisonment 3 years. Waverley Local Court 15 Jul 2009 Shoplifting Convicted. Bond to be of good behaviour for 12 months. Sutherland Local Court 17 Sep 2009 Shoplifting Convicted. Fined $200. Burwood Local Court 29 Oct 2009 Supply a prohibited drug Convicted. Bond to be of good behaviour for 3 years. Newtown Local Court 29 Jun 2010 Possess prohibited drug Convicted. Fined $250. Kogarah Local Court 13 Jul 2010 Shoplifting Imprisonment 4 months. Burwood Local Court 31 Aug 2010 Shoplifting (Call up)
Imprisonment 4 months.
Shoplifting Imprisonment 4 months. Cessnock Local Court 3 Nov 2010 Shoplifting Convicted. Bond to be of good behaviour for 2 years. Downing Centre Local Court 23 Jun 2011 Custody of knife in public place Convicted. Fined $200. Downing Centre Local Court 14 Jul 2011 Possess prohibited drug Convicted. Fined $500. Bond to be of good behaviour for 12 months. Burwood Local Court 30 Jan 2012 Use false document to obtain financial advantage On each charge: imprisonment 9 months commencing 10 Oct 2011. Receive/dispose stolen property – minimal indictable offence Drive vehicle with illicit drug present in blood Convicted. Fined $300. Licence disqualified for 12 months. Downing Centre Local Court 8 Jun 2012 Use false document to obtain financial advantage (2 charges) On each charge: imprisonment 13 months. Sentence suspended on entering bond to be of good behaviour for 13 months. Shoplifting Imprisonment 4 months. Sentence suspended on entering bond to be of good behaviour for 4 months. Drive whilst disqualified Convicted. Fined $600. Licence disqualified for 2 years. Downing Centre Local Court 12 Sep 2012 Goods in personal custody suspected being stolen Warrant of apprehension issued. ISSUE
The issue is whether the discretion to cancel the visa of Mr Hoang should be exercised.
In deciding this issue it is necessary to apply the provisions of the Direction made under s 499 of the Act, Direction no. 55 – Visa refusal and cancellation under s 501 (Direction no. 55).
BACKGROUND
Mr Hoang, now aged 40, is a citizen of Vietnam. He came to Australia on his father’s refugee visa on 14 January 1993. His mother, brother and sister also came to Australia. Apart from Mr Hoang, all members of his family are Australian citizens. Between 1995 and 2005 Mr Hoang committed a number of criminal offences as can be seen in the criminal record above. On 28 June 2005 a delegate of the Minister cancelled his visa on the ground that he failed the character test. Mr Hoang then made an application to this Tribunal for review of that decision, but it was affirmed by Deputy President Walker, QC, on 30 September 2005.
He was not deported and on 5 March 2008 the Minister decided to exercise his intervention power under s 195A of the Act and he granted Mr Hoang the BB Subclass 155 (Five Year Resident Return) visa, the cancellation of which is the subject of the present hearing before me.
Mr Hoang was warned in writing in April 1997 that any further conviction would lead to his deportation being considered and he was informed by letter of 2 February 2005 that the Minister was considering the cancellation of his visa on account of his criminal conduct.
Mr Hoang and his mother gave oral evidence before me and they were cross-examined. Written statements were given by them and also by the de facto wife of Mr Haong, Ms Bui, with whom he has been living in a close relationship for many years. Ms Bui has a son, J, 16 years of age, who is presently living with the mother of Ms Bui. J is not the biological child of Mr Hoang although he has some relationship with him.
Since his arrival in Australia in 1993 at the age of 19 Mr Hoang has spent a large proportion of his adult life in either immigration detention or in prison and this is illustrated by exhibit “D”. During these periods he has been out of contact with the Australian community. This must be taken into account when assessing his criminal record. This exhibit shows that in 2000, for example, he was in prison or detention for about 8 months; in 2001 for about 2 and a half months; in 2004-2007 for 12 months; in 2008 for two and a half months; in 2012 for over six months and in 2013 for about eight months.
During these periods of separation from normal everyday life in the community he has not been exposed to the temptation or the opportunity to engage in further criminal conduct. It was said for the Respondent that this extensive isolation from the day to day life of the community is significant because it is possible to infer that had he been in the community his record may have been worse. However, there were some substantial periods since 1995 when he was not in custody during which he did not commit any serious offences which indicates there is some possibility of rehabilitation.
I now turn to the assessment of the evidence having regard to and applying the provisions of Direction no. 55.
DIRECTION NO. 55 CONSIDERATIONS
One of the guiding principles of Direction no. 55 in clause 6.3 is stated to be that a non-citizen who has committed serious crimes should generally expect to forfeit the privilege of staying in Australia. However, it is also noted that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life. This latter statement directs attention to the ties with Australia and the importance of such ties.
The primary considerations contained in Direction no. 55 should generally be given greater weight than the other considerations but one or more primary considerations may outweigh other primary considerations and both primary and other considerations may weigh in favour, or against, refusal or cancellation of a visa.
FIRST PRIMARY CONSIDERATION – PROTECTION OF THE AUSTRALIAN COMMUNITY
Mr Hoang’s repeated misconduct is of a serious nature. The supply, possession and use of drugs, fraud and larceny, breaches of bonds and his other offences are serious and present a real risk of harm to the Australian community. I note that there are no significant crimes of violence since 1995. The evidence indicates that Mr Hoang has a longstanding drug addiction which has largely led to other crimes which on their face are not drug offences.
The sentences imposed on Mr Hoang have, in some cases, been substantial but do not indicate an extreme degree of severity. The supply of prohibited drugs in 2004, for example, led to his imprisonment for three years. In 2009 he was convicted of supplying a prohibited drug but received a three year good behaviour bond. I have taken into account that the drug offences are largely related to heroin which is an extremely harmful drug with a powerful addictive quality.
The offending conduct of Mr Hoang has been repetitive over a long period of over 17 years. Most of the conduct was directed to the need for Mr Hoang to obtain drugs for himself. He is now 40 years old and although he has made some attempts at rehabilitation in the past with the assistance of his family, and received repeated warnings, his habit has persisted. In regard to the larceny and fraud offences, these are attributable, in my view, to his need for money to finance his drug addiction.
I consider there is a real danger that his addiction will continue, notwithstanding his hopes and aspirations to the contrary. He has been made aware of the deportation consequences of his criminal conduct and has been given overall relatively light sentences for some of his offences but his behaviour pattern has continued. The evidence of repetitive conduct over a long period supports the view that there is a moderate risk that he will continue to use drugs and will reoffend. In reaching this conclusion I have not given any great weight to the speculation on behalf of the Minister that had he not been incarcerated or in immigration detention his record may have been even worse. There is no evidentiary basis for such a submission.
The potential harm to the Australian community is that he will continue to procure and supply drugs in order to pay for his drug addiction and thereby occasion damage to the Australian community: see the remarks of Katzmann J in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445 at [59]-[61] and [75]-[76] and the recent decision of the Full Court in Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [17]-[23].
The steps he may take to procure drugs as indicated by his criminal record may involve stealing, dishonesty, and shoplifting, for example. This could cause harm to the Australian community. However, I do note that his previous offences do not, after 1995, indicate any violence on his part. In the course of cross-examination there was no suggestion of any offences or serious conduct in relation to activities causing harm to minors or vulnerable persons or any sexual offences. However, in relation to the conduct and risk of repetition I consider there is a significant possibility that he may reoffend if he remains in the Australian community. This consideration supports cancellation of the visa but it is not itself determinative.
SECOND PRIMARY CONSIDERATION – BEST INTERESTS OF CHILDREN UNDER 18
Mr Hoang has no biological children. His partner, Ms Bui, has a son who is now 16 years and eight months of age. Direction no. 55 refers to the interests of a “child” and this expression does not indicate the interests of a young man approaching 17 years of age should be assessed in the same way as a person of tender years. Ms Bui gave a statement that her son does not visit Mr Hoang in detention because it is too distressing. The evidence does not indicate that Mr Hoang is in a position to support J and in recent times there appears to have been no significant direct contact. However, there is the real possibility that he may have some parental role in view of his long close relationship with Ms Bui. I am not persuaded that his relationship with J is presently strong but there is a potential for it to develop. I do not give great weight to this primary consideration but it does weigh in favour of non-cancellation.
THIRD PRIMARY CONSIDERATION – STRENGTH, DURATION AND NATURE OF TIES TO AUSTRALIA
Mr Hoang has strong ties to Australia and these must be given substantial weight. His relationship to his father, mother and Ms Bui are strong and it can be inferred that considerable emotional and regular support will be provided by them. This will have some considerable impact on the future conduct of Mr Hoang and will in my view provide strong motivation to improve his conduct.
His father appears to be suffering a number of infirmities and has a need for his son to remain in Australia. His mother and partner have deep emotional ties. There is also, as stated above, some potential for the development of a better relationship with J.
Mr Hoang has lived most of his adult life in Australia. There is no evidence of any firm ties or commitment to Vietnam. He speaks Vietnamese but culturally the evidence indicates that he has strongly adapted to the Australian culture. He has never returned to Vietnam. He must be regarded as having very strong ties to Australia by reason of the presence of his family who are all Australian citizens. He has been in Australia now for approximately 20 years since the age of 19. There is also some evidence of his intending to find work although no specific proposal is in evidence. He has, in fact, found some employment in the past. He will receive as much support as possible from his family. He appears to enjoy good health and to be willing and able to work in a remunerative capacity.
This consideration strongly favours the discretion being exercised to allow Mr Hoang to retain his visa.
FOURTH PRIMARY CONSIDERATION – INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
This primary consideration is not relevant in this case.
OTHER CONSIDERATIONS
Because of the strong family connections supported by the evidence there will be a serious adverse impact on the family members of Mr Hoang if he is forced to leave Australia, in particular, his longstanding partner and his mother. Ms Bui has suffered from depression and he may be able to play a useful role in assisting her with this condition. There will also be a serve impact on his father. There may be some adverse impact on J.
I do not consider there will be any impact on any Australian business interests.
If returned to Vietnam Mr Hoang will suffer considerable adjustment problems both culturally and from the point of view of living standards. I do not consider these inconveniences to be significant. He is ethnically Vietnamese and can converse in that language. There is no concern from a health point of view. Age is not an impediment to his return to Vietnam.
CONCLUSION
In conclusion, I consider that the degree and duration of Mr Hoang’s ties to Australia over a period of 20 years and the strong loving support of his mother and longstanding partner, Ms Bui, outweigh the need for protection of the Australian community in this case. His ties are demonstrated by his adaptation to the Australian culture over the past two decades. These ties, together with the punishments and detentions he has experienced and the support of those closest to him, will serve as a strong deterrent to further serious misconduct. In all the circumstances I do not believe the evidence supports a decision that the visa of Mr Hoang should be cancelled.
DECISION
Accordingly, I set aside the decision under review and substitute therefor the decision that the visa of Mr Hoang should not be cancelled.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President ................[sgd]........................................................
Associate
Dated 23 December 2013
Date of hearing 11 December 2013 Applicant In person Solicitors for the Respondent Mr L Leerdam, DLA Piper Australia
Hoang and Minister for Immigration and Border Protection [2013] AATA 932
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