Hoang and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 960
•30 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 960
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/902
GENERAL ADMINISTRATIVE DIVISION ) Re Tuan Anh Hoang Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date30 September 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex - on-shore cancellation of visa on character grounds – substantial criminal record including robbery and supply prohibited drug – discretion that the tribunal may apply where the applicant fails the character test – necessity to balance the hardship to the applicant against the protection and expectations of the Australian community – examination of the applicant’s criminal history – examination of his circumstances in Australia including his relationship with his parents and de facto and her son Justin – held that the child Justin has a strong relationship with his mother’s family including spending time with his grandfather who is in a position to give him a fatherly type guidance and company – held that his parents have other children in Australia who will be able to assist them when they reach old age – held that the applicant would suffer hardship in being returned to Vietnam but his skills should assist him - held that the expectations and protection of the Australian community outweigh the other considerations – decision of the respondent is affirmed.
Migration Act 1958 ss 91U, 499, 501, 510E(2), 506, 506(c)(i), 507
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 42
Re Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 824
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Teoh v Minister for State for Immigration and Ethnic Affairs (1995) 183 CLR 273
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Convention Relating to the Status of Refugees
REASONS FOR DECISION
30 September 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Tuan Anh Hoang, aged 32, is a citizen of Vietnam. He came to Australia on 14 January 1993 at the age of 19. On 1 September 1994, he was granted a transitional (permanent) visa by operation of law under the Migration Reform Act. Between 1995 and 2004 he committed a series of criminal offences including armed robbery with wounding, robbery with striking, larceny and goods in custody, and possession and supply of a prohibited drug.
2. On 28 June 2005, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, cancelled Mr Hoang’s transitional (permanent) visa on the ground that he failed the character test because of his substantial criminal record in Australia and past and present criminal conduct. That is the decision to be reviewed by the tribunal.
Background
3. Mr Hoang was born in Vietnam on 8 September 1973 and is aged 32. He is a citizen of Vietnam. He first came to Australia on 14 January 1993 apparently as a dependant on his father’s category 200 refugee visa, with his mother, brother and sister. At the time he was aged 19. On 1 September 1994, he was granted a transitional (permanent) visa by operation of law under the Migration Reform Act. His parents and siblings reside in Australia. He speaks limited English.
4. Between 1995 and 2004, Mr Hoang was convicted of a number of criminal and driving-related offences (G6). His criminal record (he has used 20 aliases), includes the following:
Charge Date
Court/Date
Offence
Sentence
14/2/1995
Fairfield Local Court, 23/3/1995
1. Armed robbery with wounding
2. Armed robbery
1. & 2. Sentenced to trial.
14/2/1995
Campbelltown District Court, 4/10/1995
1. Robbery in company
2. Robbery with wounding
3. Robbery with striking
1. Fixed term 1 year concurrent.
2. & 3. On each charge minimum term 2 years from 14/2/1995 add term 2 years.
24/1/1998
Burwood Local Court, 4/2/1999
Possess prohibited drug
Fine $500, court costs $52.
4/3/1999
Newtown Local Court, 19/7/1999
Larceny value less than $2,000
Recognisance s558, $500, 12 months supervision, NSW Probation Service.
29/4/1999
Newtown Local Court, 19/7/1999
1. Unregistered vehicle
2. Uninsured motor vehicle
3. Aid and abet vehicle with misleading plates
4. Goods in custody
5. Carry cutting weapon
1. Fine $150.
2. Fine $150.
3. Fine $100.
4. Community service order 150 hours.
5. Community service order 150 hours.
21/12/1999
Central Local Court, 24/1/2000
Goods in personal custody reasonably suspected being stolen
Fixed term 3 months commencing 3/1/2000.
3/1/2000
Burwood Local Court, 4/1/2000
Shoplifting value less than $2,000
Fixed term 3 months commencing 3/1/2000.
6/7/2000
Parramatta Local Court, 29/9/2000
Shoplifting value less than $2,000
Imprisonment 6 months commencing 15/9/2000 concluding 14/3/2001.
15/9/2000
Parramatta Local Court, 29/9/2000
1. Possess prohibited drug
2. Larceny value less than $2,000 – three counts
3. Goods in custody
1. Imprisonment 4 months.
2. Imprisonment 6 months commencing 15/9/2000 concluding 14/3/2001.
3. Imprisonment 4 months.
18/4/2002
Newtown Local Court, 22/10/2002
Possess prohibited drug, two counts
Imprisonment 6 months commencing 22/10/2002.
On appeal on 18/11/2002 at the Sydney District Court, conviction confirmed.
19/5/2002
Newtown Local Court, 22/10/2002
Possess prohibited drug
Imprisonment 6 months commencing 22/10/2002.
On appeal on 18/11/2002 at the Sydney District Court, conviction confirmed.
16/1/2004
Sydney District Court, 3/6/2004
Ongoing supply of heroin
Imprisonment 3 years commencing 16/1/2004.
5. Whilst imprisoned, Mr Hoang has had the following offences recorded against him:
Hearing Date Offence/Sentence
21/8/1995 Damage property – SUP – compensation
12/10/1995 Assaults – 3 days SUP – cells only
6/6/1996 Breach section 29/Leave – 28 days SUP –
off other amenities12/12/1996 Fail attend muster – 3 days SUP – cells only
20/12/1996 Fail attend muster – 7 days SUP –
off other amenities22/9/2000 Assaults – 2 days cells
14/2/2004 Possess drug implement – 28 days off
contact visits22/4/2004 Enter correctional centre property –
7 days off television16/8/2004 Fail urine test – 42 days off television
16/8/2004 Fail urine test – 42 days off contact visits
(Drugs in urine only)16/8/2004 Fail urine test – 42 days off buy-ups
6. On 23 April 1997, an officer of the then Department of Immigration and Multicultural Affairs (“DIMA”) informed Mr Hoang that the Minister or his delegate had considered ordering his deportation as a result of his convictions for robbery being armed with striking; robbery being armed with wounding; and robbery in company, but it had been decided to issue him a warning that any further conviction would lead to his deportation being reconsidered. He was also warned that any disregard of the warning would weigh heavily against him. Mr Hoang acknowledged receipt of this letter on 24 April 1997 (G5 p92).
7. On 3 June 2004, Mr Hoang was convicted in the Sydney District Court on the charge of supply prohibited drug on an ongoing basis and sentenced to three years imprisonment with a non-parole period of one year and six months. On 2 February 2005, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA”) wrote to the applicant, informing him that the Minister or his delegate was considering cancelling his transitional (permanent) visa because of his substantial criminal record and past and present criminal conduct and inviting him to comment. He was also informed that the Minister or his delegate would be taking into account his criminal history, record of conviction, sentences and appeals, the sentencing comments of the District Court judge of 4 October 1995 and the fact that he had previously been given a warning about his possible deportation (G8 p110). Mr Hoang acknowledged receipt of this letter on 3 February 2005, but made no submissions in response.
8. On 28 June 2005, a delegate of the respondent decided to cancel Mr Hoang’s transitional (permanent) visa because of his substantial criminal record and past and present criminal conduct and because of the continuing risk that he would re-offend, and having exercised her discretion under s 501(2) of the Migration Act 1958 (“the Act”) to cancel his visa. Mr Hoang was served with this decision on 11 July 2005 and on 18 July 2005, lodged an application for a review of that decision by the tribunal.
9. Mr Hoang was released from Bathurst Correctional Centre on 15 July 2005 and immediately detained at the Villawood Detention Centre, New South Wales.
10. At the hearing, the applicant was represented by Radha Nair, counsel, instructed by Selena Arain, solicitor, of Lloyd Truman Sadiq, solicitors, acting on a pro bono basis, and the respondent was represented by Therese Quinn, solicitor, Phillips Fox, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Oral evidence in person was given by the applicant, Hoang Xuan Sinh, Tam Bui and Le Thi Thanh Van.
Relevant Law and Policy
11. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.
12. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
15. In the present case, Mr Hoang does not pass the character test because of his “substantial criminal record”, having received on 4 October 1995 a term of 12 months imprisonment for robbery in company and a minimum term of two years with an additional term of two years for robbery with striking and robbery with wounding and on 3 June 2004, a term of imprisonment of three years with a non-parole period of one year six months for the conviction of supply prohibited drug on an ongoing basis. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Hoang’s visa.
Evidence on the character issue
16. The applicant gave oral evidence in person with the assistance of a Vietnamese interpreter. Neither in his statement of fact and contentions nor in his oral evidence did he dispute or deny the offences of which he was convicted. At the time he had pleaded guilty to at least the most serious charges and possibly more. That fact was taken into account in determining the length of the sentences imposed.
17. In his oral evidence he said that his offences had been committed to support his then heroin addiction. Presumably he was referring to his more recent convictions, including the three year sentence he received for supplying heroin on a continuing basis in June 2004. He had started using heroin (and no other drugs) when he was 28 or 29, “about three or four years ago” in 1999 or 2000. The sentencing judge in 2004 said that the applicant had been addicted for six years (Exhibit R2). The estimate of three or four years could perhaps have meant three or four years before his most recent term of imprisonment began, but the respondent contended that the underestimate showed he was still in denial. He had started using heroin whenever his friends gave it to him, initially free of charge and later for payment. At the height of his addiction he had been using the drug three times a day. When it was pointed out to him that he was convicted of a drug offence in January 1998, he initially said he did not recall that episode, but conceded the point when he was shown the record of the conviction, and added that he had begun to use heroin from about that time.
18. A drug addiction is of course not a mitigating factor in considering the seriousness of the person’s criminal record, but a clear and permanent break from drug abuse can be regarded as constituting evidence of rehabilitation to be weighed in the exercise of discretion. At the hearing Mr Hoang said that he had been free of drugs since January 2004. He had failed a drug test in jail, but that was a test taken shortly after his arrival. That was not correct, however. He was taken into custody on 16 January 2004, and Judge Woods back-dated his three year sentence to that date. He failed the drug test eight months after being taken into custody, on 16 August 2004. He had also been sentenced for possessing a drug implement on 14 February 2004, a month after being taken into custody.
19. The applicant said he would not resume drug abuse even if he met his former friends again, because he was remorseful of his past misdeeds, he was now mature, and his parents were in poor health and needed his help. When it was put to him that he expressed remorse on earlier occasions when he had been released but had returned to lawbreaking, he replied that he was young at the time and was not thinking properly. Ms Quinn pointed out to him that he was aged 29 when released in April 2003, and must have surely been mature by that stage. He replied that he was still at that stage thinking about his friends, whereas now he was more oriented to his family.
20. The applicant’s father, Mr Xuan Sinh Hoang, gave character evidence in his son’s support. He said that his son was young at the time he was involved in crime and was not thinking properly because he was mixing with the wrong company. Now, however, he is more aware of the consequences of his behaviour and will be a good citizen who will help his family, his parents now being in ill health. Although to outward appearances a fit and healthy man, who is aged 56, he is in fact supported by the disability support pension and his wife receives a carer pension to look after him. Mr Hoang says that he suffers from back pain, diabetes and problems with his lungs. He has not worked for four years, but before that was a part-time motor mechanic.
21. Mr Hoang senior continued that every time his son had offended in the past, he had visited him and advised him how to behave. He had promised to do the right thing from now on, especially since he had been moved to Villawood. He conceded that the applicant had given such assurances before (as has Mr Hoang senior: G p65) but had re-offended, but said that his son was now more mature and was thinking about the future. He needed his family’s support and deserved one last chance.
22. In her written statement (Exhibit A5), Ms Tam (Tammy) Bui, the applicant’s de facto spouse, also said that his outlook had changed: “I know that Tuan was wrong in what he did and he has remorse for his [sic] had done because it has brought grief to us and his family”.
23. There is little evidence of recent rehabilitation to be weighed in the positive side of the scale when making an assessment of character. The applicant took no rehabilitation courses during his latest term of imprisonment. During an earlier period in jail he had, however, undertaken a number of courses including a forklift driver’s course. On the strength of that he did obtain employment as a forklift driver at Flemington markets and held that position for four to five months in 1998 to 1999.
24. In 1998 he had also worked as a welder, he said, for six months. He offered no explanation for ceasing to work in those two positions. Earlier, the applicant had explained that it had been difficult for him to find employment in Australia because of his English skills (G p36). That explanation cannot be accorded much weight, however, given that he was apparently able to find work as a forklift driver and welder in 1998, and even shortly after his arrival worked in a bakery owned by a Vietnamese (or perhaps a sushi factory), although he stayed there only a few days. Further, there are many thousands of immigrants in Australia with little or no English who have managed to find and hold fulltime employment.
25. The year 1998 saw his first and last period of significant employment in Australia. During the two, three or four years he had lived in Hong Kong (he gave different figures at different times), he had worked as a welder for a year, possibly in air-conditioning or construction. He had also spent some time in a tannery or leathergoods factory.
26. In Australia, however, he appears at the outset to have made no serious attempt to find employment, apart from periods of a few days working in a bakery or a sushi factory or both. At the hearing he explained that he could not seek work because he was trying to learn English, but the English course only lasted six months and it is not clear whether he actually completed it. Certainly his English now is poor.
27. The evidence of character therefore shows a person who commenced serious lawbreaking within two years after his first arrival in Australia and has received several terms of imprisonment. On each occasion he has claimed he has reformed but has re-offended, even after being seriously and formally warned in 1997 that he had made himself liable to deportation. He has a very poor employment record and shows little recent evidence of rehabilitation. He says he has been free of drugs since January 2004, but the evidence shows that he was using drugs at least as late as August 2004 (G p109). His contribution to Australian society has been almost entirely negative.
Evidence in relation to the discretion
28. The evidence referred to above on the issue of character, especially in so far as it relates to the nature of the offences, the possibility of rehabilitation or recidivism and his employment record are also relevant to the exercise of the statutory discretion.
29. In addition, Ms Tam Bui described the relationship that had developed between the applicant and herself. She had known him since 1998 and they had cohabited in a de facto relationship for four years. Her previous de facto, the father of her eight-year old son Justin, was murdered in 1996 before her son was born, but now she had developed a close marriage-like relationship with the applicant. She works as a caterer, earning between $360 and $400 gross per week. Her mother takes care of the child and for that reason draws the social security parenting benefit. If Mr Hoang were to be deported, she would remain in Australia but would visit him in Vietnam, perhaps as often as every three to six months. She last returned to Vietnam in 2001 for two weeks. Although she said that Mr Hoang would not be able to survive in Vietnam because the lifestyle there had changed dramatically in recent years, she noted that conditions were now much better there and that she thought he would be able to get a job, although it is not easy to make money in Vietnam and the work is hard.
30. As her son had never known his father, he had developed a close relationship with Mr Hoang since he had been living with Justin’s mother, she said. When he was not in jail he spent time with Justin, after dinner or at weekends. She knew from 2000 onwards that he was addicted to heroin and using it every day, and on a couple of occasions he was under its influence when with her son, “but not a lot”. She had, however, been worried about his influence on her son and, perhaps surprisingly, admitted that she was still worried on that account.
31. She said, however, that her son had been disappointed when the applicant was not released after he was paroled, but had been sent to Villawood. Justin had become apathetic and as a consequence had obtained an indifferent result on a school project.
32. On the other hand, he has many friends and also spends time with her two sisters, her parents, and uncle. Her parents currently live with her. Her father, who is aged 56, now only works part-time and spends about a half a day with Justin approximately four times a week. That conflicted with the evidence of the applicant on this point, who said that in an average week when he was not in jail, he spent most of his time taking care of Justin because his mother was working part-time in a shop.
33. The applicant’s mother Mrs Thi Thanh Van Le said that if the applicant were returned to Vietnam it would be very difficult for him, for having been out of the country for so long he would not find work. Drugs are also more plentiful there than here. Mrs Le had not, however, returned to Vietnam since her departure in 1993 and thus, unlike Ms Bui, had no first-hand knowledge of current conditions there.
34. In his written statement and his statement of facts and contentions Mr Hoang said that he would not be accepted by Vietnam because of his criminal history and would be persecuted under their law. No country would accept him and he was thus stateless. He stated that he had no contact with his relatives in Vietnam. His paternal grandmother still lives there, but as he has never lived with her there are no ties with her at all. In his written statement he did not mention that he also has a grandfather in Vietnam. He also has some uncles and aunts there. Nevertheless, he said that if he were to return to Vietnam he would have no-one to stay with. His grandparents, he said, “are nearly 90”. His father, however, said that his father (the applicant’s grandfather) is “over 80”, and his mother (the applicant’s grandmother) is “nearly 80”. His siblings, Mr Hoang senior said, were poor and would be unable to help the applicant to rebuild his life. The applicant said he did not know what Vietnam was like today or how its economy and society had changed. He had left when he was very young and did not know what he would be able to do there.
Application of the Law and Findings of Fact
35. The applicant did not concede the character point but did not dispute it either. I find that Mr Hoang does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more, and because of his past and present criminal conduct within s 501(6)(c)(i) of the Act. As was stated above, the applicant has been convicted on several different occasions of a number of offences for which he was sentenced to terms of imprisonment greater than 12 months. There is a pattern of criminal behaviour persisted in despite a formal warning of possible deportation and little positive evidence to set against it.
36. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Mr Hoang’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
37. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
38. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (a) the commercial dealing or selling of illicit drugs, (e) armed robbery (including robbery involving the use of imitation weapons), (f) assault or any other form of violence against persons, and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.
39. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
40. In his sentencing remarks on 3 June 2004 (Exhibit R2), Judge Woods noted that the applicant was eligible to be considered for release to parole at the expiration of the non-parole period and added,
I strongly recommend that his release on parole be conditional upon his entering into some rehabilitation program appropriate to his condition. I urge the offender to take all steps within his power to seek out drug and alcohol rehabilitation services, such as they are, to which he may have access within the prison. (Exhibit R2 p5)
On behalf of the applicant, Mr Nair contended that his Honour’s recommendation gave rise to a legitimate expectation within the meaning of Teoh (Teoh v Minister for State for Immigration and Ethnic Affairs (1995) 183 CLR 273) that his client would not be deported until every opportunity for his rehabilitation had been availed of. Mr Nair cited no authority for the proposition that a sentencing Judge’s recommendation concerning parole could create expectations that would be binding on the executive government. At all events I have considered the weight that should be given to any such expectations and I note that Woods J treated the matter of drug and alcohol rehabilitation as one in which the applicant himself needed to take active steps to seek out rehabilitation services. There is no evidence that he did so, although he does claim to have been free of drugs for over a year. I also think that the explicit warning given to the applicant about deportation in 1997 (see below) carries greater weight than any expectation of exhaustive rehabilitation services.
41. It was also submitted that deporting the applicant might constitute cruel or inhuman punishment within Article 7 of the International Convention on Civil and Political Rights. Counsel did not support the applicant’s earlier claim that he could not return to Vietnam and was effectively stateless, a position that is untenable in light of the Memorandum of Understanding with the Vietnamese government signed on 15 June 2001. Under its terms, the Vietnamese government has agreed to accept criminal returnees or deportees in accordance with Vietnamese and international Law. The Vietnamese government has also agreed to facilitate their return (G p122). The department’s protection obligations assessment dated 9 June 2005 concluded that it is unlikely that the Vietnamese authorities would take punitive action against Mr Hoang because of his criminal convictions in Australia (G p122). The assessment also noted that available information did not indicate a real risk that Mr Hoang would face violation of his fundamental human rights under Article 6 or Article 7 of the ICCPR if returned to Vietnam (G p135). The applicant cited no authority for the proposition that deportation in itself could constitute cruel or inhuman treatment or punishment within Article 7.
42. It was also submitted that as the applicant had come to Australia on a refugee visa, he might still hold refugee status and could therefore not be deported unless convicted of a serious offence (Article 33(2) of the Convention Relating to the Status of Refugees). Section 91U of the Migration Act 1958 relevantly provides that for the purposes of applying Article 33(2) of the Refugees Convention, a serious offence includes “a serious drug offence” punishable by “imprisonment for a maximum term of not less than three years” (section 91U(2)). The maximum sentence for the offence of which the applicant was convicted in 2004 is 25 years, but it was submitted that as he was sentenced to only three years’ imprisonment his offence was towards the lower end of the scale and not a serious one. Nevertheless, as the maximum sentence available qualifies it as a serious offence under section 91U, I do not think the Refugees Convention prevents deportation in this case.
43. The respondent pointed out that as the applicant probably entered Australia as a dependant on his father’s refugee visa, he may never have been assessed for personal entitlement to protection as a refugee. In that sense he might not have refugee status at all. Nevertheless, he could still apply for a protection visa today, although there is no evidence that he would face a real risk of persecution, and indeed the assessment referred to above suggested the contrary. Nevertheless, that option was available to him by virtue of section 501E(2): Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 42, paragraph 27. The Full Court of the Federal Court also noted in that case that
The above provisions seem to demonstrate a clear legislative intention, where the visa the cancellation of which is under consideration is not a protection visa, to divorce issues relating to protection from the factors required to be considered for the purpose of making a decision under s501. (Paragraph 28)
44. Counsel also contended that it was discriminatory to deport a non-citizen after he had served his sentence when an Australian citizen could not be. He noted that the law does permit it, but nevertheless it is an act of discrimination and that factor should weigh in his favour in exercising the discretion. He should not be sent back to Vietnam until every attempt to absorb him had been made.
45. Deportation is indeed a momentous step and should not be taken without solid grounds and full consideration. Beyond that, however, I do not think an argument based on discrimination carries matters very far. The migration laws of all countries are based on treating citizens of a particular country differently from non-citizens. That is, and always has been, regarded as a fundamental attribute of national sovereignty and independence. In a democracy it is the means whereby the people through their representatives determine who is to be permitted to play a part in the government of the country.
Protection of the Australian Community
46. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant has been habitually committing crimes since the age of 22 including crimes involving robbery and violence, and the supply of prohibited drugs. Judge Woods of the District Court noted when sentencing the applicant on 3 June 2004 that “The offender has quite a significant criminal history. … he has offences within the last ten years involving him being in prison for robbery in company, robbery with wounding, robbery with striking … Generally the history which is quite extensive is consistent with a person who is a drug addict, and who is involved in criminal activities to finance his addiction” (Exhibit R2 p2).
47. Paragraph 2.6 of Direction No 21 states:
2.6 It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
·offences involving illicit drugs of dependency or addition, such as heroin, are also of particular concern to the Government and the community; …
48. Paragraph 2.7 of Direction No 21 states:
It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
(a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; …
49. Direction No 21 explicitly mentions the supply of drugs for profit, whether or not motivated by the offender’s own need for illicit drugs, as being “extremely serious”. The applicant’s 2004 conviction for supplying heroin on an ongoing basis from a base he had established at Marrickville RSL Club squarely falls within the direction’s intention in that regard. The direction also specifically refers to armed robbery, and one of the applicant’s three convictions for robbery involved the applicant pointing a pistol at some store-keepers while confederates took money and other property, wounded one of the victims and struck another. Another robbery was described by the sentencing judge, Ford J, as “very serious” (G p23). His 2004 drug dealing conviction, Woods J observed, was systematic and involved “repetition and planning” (Exhibit R2). The applicant’s criminal record and criminal behaviour must be regarded as very serious.
50. Next, the tribunal must consider the risk of recidivism. The applicant regularly appeared before the courts between 1995 and 2004. Paragraph 2.10(b) of the direction states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. The tribunal also needs to take into account in this matter the fact that the applicant received a warning in April 1997 of the possibility of deportation if he re-offended, which he has continued to do, including serious drug-related offences. In fact, most of his recorded offences were committed after that warning. On the criterion of repeated offending and reoffending alone, it must be considered that there is a risk that the applicant will engage in further unlawful conduct in the future. During an earlier term of imprisonment he did undertake some rehabilitation and vocational courses. He convinced the department, his family, his then girlfriend and possibly himself that he had reformed and would not reoffend. Then, as I have noted, he went on to incur more convictions than ever. He has used 20 aliases, which further suggests a long-term habit of law-breaking.
51. Mr Peter Clark-Saunders, the psychologist engaged by the applicant, said that current predictors of recidivism for the applicant were “non conclusive”. He thought he could be rehabilitated with drug counselling and basic English and numeracy training (Exhibit A7). The witness was not available for cross-examination, however, and his report was admitted over the respondent’s objection. Even in its own terms, the report concedes the present possibility of recidivism and notes, without disputing the point, that “at present Mr Hoang’s character is deemed problematic”.
52. In her statement of facts and contentions (Exhibit R1), the respondent states that the applicant has a high risk of recidivism and that he has not undertaken any form of rehabilitation during his latest period of incarceration: “In fact, the evidence suggests otherwise. He failed a urine test while in prison, indicating that he continued to take illicit drugs” (Exhibit R1 p7). This case thus presents a real risk of recidivism.
53. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in this case would send an entirely undesirable message to non-citizens contemplating, or currently engaged in, criminal activity.
Expectations of the Australian community
54. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
55. The applicant arrived in Australia in 14 January 1993 and committed his first offence on 27 January 1995, only two years after arriving here. He has continued to engage in criminal activities since that time, including drug offences and crimes involving violence against persons. In one case he held robbery victims at pistol point while his accomplices inflicted considerable violence on their victims. He was considered for deportation in 1997 and formally warned by letter (of which he acknowledged receipt: G p92) that
any further conviction will lead to the question of your deportation being reconsidered. (G p92, emphasis in the original).
56. The fact that he came to Australia at the age of 17 and has been here for 12 years is relevant to this primary consideration, but as Deputy President Purvis has pointed out in a case quite similar to this one, it needs to be evaluated in light of his conduct while here:
It was further submitted that the Applicant has never effectively lived in Vietnam “as an adult” and that “the Australian community might think it rough for a person arriving at the age of 16 years to be thrown out at the age of 35 years”. This submission is made regardless of the conduct of the Applicant whilst in Australia and the minimal contribution that he had made to the community. He has over a lengthy period of time in fact acted against the interests of the community.
(Re Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 824, paragraph 40).
57. Mr Nair submitted that the community would expect that no deportation would occur until every possible means of rehabilitation had been availed of. In a perfect world that might be so, but I do not think such a counsel of perfection would be thought practicable or achievable, especially in the case of an offender who has been so explicitly warned.
58. In my view community expectations would favour visa cancellation in this case.
The Best Interests of the Child
59. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
60. In this case, there was no evidence in the G Documents before the tribunal that there was a child or children whose interests should be considered. Both the decision under review and the International Obligations and Humanitarian Concerns Assessment completed on 16 June 2005 proceeded on the basis that he had no relationship with any child in Australia (G pp9, 142, 143). However, shortly before the hearing, on 6 September 2005, in a submission to the tribunal (Exhibit A2), his representative made the following assertion:
He has a de facto partner. Her name is Tammy. She has a child and they have lived together as husband and spouse over the years. He treats the child as the child of the family. The child who likes his adopted father live [sic] in Australia and was cared for by him. Under Children International Convention, the children [sic] interest shall be the paramount position.
That was also the first mention of his de facto, Ms Tam Bui.
61. At the hearing, Mr Hoang said that he first met the child, Justin, at the same time as he met his mother in 1998 and had come to view him as if he were his own son. Ms Bui had brought Justin to see him once when he was in jail and once at Villawood. As was noted above, Ms Bui said that after the de facto relationship began in 2000, her son had come to regard the applicant as a father figure and was disappointed when he was not released. His school work, or at least one school project, had suffered as a consequence, she said.
62. As against that, the applicant has been in jail for two and a half years of the period since the de facto relationship began. His evidence about his role in the child’s life conflicts with that of the child’s mother. He stated that when not in prison, he spent most of his time taking care of Justin, as Ms Bui was working part-time in a shop. Ms Bui, on the other hand, said that Mr Hoang interacted with Justin mainly in the evening after dinner and at weekends. He has, of course, never supported the child.
63. Ms Bui’s parents live with her and Justin. Her father, aged 56, now only works part-time and spends about half a day four times a week with the child, which aggregates to a much larger period of care than the applicant has given. He is in a position to give Justin a fatherly type of company and guidance. These days many men aged 56 or older have young children. There is no reason to doubt that Ms Bui’s father will continue to play an important role in Justin’s upbringing and he has an incentive to do so. Justin is a blood relative of his, which is not the case with the applicant.
64. Ms Bui also stated that on a couple of occasions the applicant was under the influence of drugs when he was with Justin. She said she had worried about the applicant’s influence on her son, and worried about it even today.
65. The psychologist’s report tendered at the adjourned hearing found that there is a “powerful attachment and appropriate paternal bonding” between the applicant and the child and that the applicant’s removal “would have a detrimental and deleterious affect [sic] on Justin’s psycho-social development” (Exhibit A7 p5). The weight to be given to that conclusion is mitigated by at least three factors. First, the psychologist did not make himself available for cross-examination and no statement of his qualifications was received. Secondly, he necessarily had to rely on what the applicant and his family told him in the course of a single three-hour session, not all of which was true. Thus, for example, he reported that “Ms Bui stated that she has absolutely no concerns for the safety of her son in relation to his interactions with Mr Hoang.” That was inconsistent with the evidence Ms Bui had previously given at the hearing. Thirdly, the psychologist appears not to have been told about the involvement of other family members in Justin’s upbringing, such as Ms Bui’s parents, who live with her and the child. In particular, Justin’s 56‑year old maternal grandfather spends about half a day four times a week with Justin in a fairly normal familial type of setting.
66. Even assuming that the account of the relationship between the applicant and Justin is not a recent fabrication, and on that there must be some doubt, the net result of visa cancellation on the child’s interests remains rather equivocal, especially as Ms Bui indicated a willingness to take Justin to visit the applicant in Vietnam from time to time if he were to return to live there. I therefore conclude that the best interests of the child in this case do not weigh strongly against visa cancellation.
Other Considerations
67. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
68. The applicant’s parents and siblings all reside in Australia. In a submission filed with the tribunal on the applicant’s behalf prior to the hearing (Exhibit A2), his solicitor stated:
His parents are both of elderly years. They need Mr Tran to look after them. Should he be deported from this country, he will not come back to this country to do his duties for looking after his parents, which may contravene Vietnam and Chinese culture.
The applicant’s parents are middle-aged rather than elderly, and they have other children in Australia who can help to take care of them in their old age. The evidence does not show whether that would contravene Vietnamese or Chinese culture, but I doubt that it would contravene Australian culture. On the other hand, the applicant’s paternal grandparents live in Vietnam and he has uncles and aunts there.
69. The applicant would suffer some hardship in readjusting to life in Vietnam after a 12 year absence. But as a result of the free market reforms of recent years, the Vietnamese economy is reportedly growing quite rapidly. Ms Bui, who visited Vietnam in 2001, said that conditions there had improved considerably and she thought that the applicant would be able to obtain employment there. His qualification and basic experience as a forklift driver would help in that regard. He has no business or economic ties to Australia.
70. Having weighed up all the considerations, I find that the other considerations do not outweigh the case for deportation.
71. The decision under review should therefore be affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 8 September 2005
Date of Decision 30 September 2005
Counsel for the Applicant Mr R Nair
Solicitor for the Applicant Ms S Aria, Lloyd Truman Sadiq Solicitors
Solicitor for the Respondent Ms T Quinn, Phillips Fox Solicitors
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