Hong and Minister for Immigration and Multicultural Affairs - [2000] AATA 634

DECISION AND REASONS FOR DECISION [2000] AATA 634

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N 1999/1800

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MINH DUC HONG
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date1 August 2000
PlaceSydney

Decision The decision under review is set aside and the matter is remitted back to the Minister with a direction that Mr Hong not be deported.

..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – criminal deportation – citizen of Vietnam – entry into Australia age 12 – refugee from Vietnam – convictions for drug related offences – history of drug use and dependence – consideration of seriousness of the offences – not abhorrent in the sense envisaged by the policy direction – risk of recidivism assessed to be quite high – some prospect for rehabilitation– consideration of deterrent factor – little general deterrent value - consideration of hardship – consideration of family and associated ties - family would suffer real hardship – consideration of conditions in Vietnam – prospect of rehabilitation in Vietnam minimal – applicant would suffer very severe hardship in Vietnam –consideration of the expectations of the Australian community – Australian community should not be exposed to further risks – weighing of factors against deportation – decision set aside
Migration Act 1958 s200
New South Wales Drug Misuse and Trafficking Act 1985
Hong v Minister for Immigration and Multicultural Affairs (1999) FCA 1567
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Bustescu v Minister for Immigration and Multicultural Affairs (2000) FCA 698
Lau v Minister for Immigration and Multicultural Affairs (2000) FCA 698

REASONS FOR DECISION

Dr D. Chappell, Deputy President

BACKGROUND
Application and Hearing

Mr Minh Duc Hong, the applicant, seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s200 of the Migration Act 1958 (the Act), to deport him from Australia. The Tribunal's jurisdiction to review that decision is granted by s500(1)(a) of the Act.
Mr Bruce Miles, a solicitor, represented Mr Hong at the hearing. Mr Hong appeared in person and gave personal testimony to the Tribunal. The following witnesses also testified on his behalf:
Ms Viet Hua Hong
Ms Tua Hoa Hong
Mr Minh Vi Hong
Mr A. Hadjipanayotis
Mr Thanh Kak Le
Mr A. Lam
Mr M.L. Green
Dr T.O. Clark
Mr Geoffrey Johnson, of counsel, instructed by Ms Juanita Kapel, a departmental advocate, represented the respondent at the hearing. The following witnesses testified on behalf of the respondent:
Dr G. R.W. Davies
Ms H.J. Campbell
Ms A.M. Paxton
Mr M. L. Green
Dr Truong Thin
The Tribunal had before it documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.     Description    Date
A1      Certificate of Australian Citizenship – Mr Minh Vi Hong          21/2/1996
A2      Cable from Australian Embassy, Ho Chi Minh City to Canberra on deportation of Vietnamese nationals      3/8/98
A3      Psychiatric report from Dr T.O. Clark      16/6/2000
R1      Report from Parramatta Correctional Centre     14/4/2000
R2      Draft medical report from Dr Gordon R.W. Davies       17/4/2000
R3      Medical report from Dr Gordon R.W. Davies     17/4/2000
R4      Note from Ministry of Foreign Affairs Socialist Republic of Vietnam   3/8/1998

Referral by Federal Court

This matter was remitted by the Federal Court to the Tribunal for reconsideration in November 1999: see Hong v Minister for Immigration and Multicultural Affairs (1999) FCA 1567. The reasons for this remittal are set out in the decision of Madgwick J and do not require reconsideration here. The transcript of the earlier hearing, conducted before Gerber DP on 13 and 14 January 1999, was included among the documentary evidence before the Tribunal (T31).
Chronology of Events
The following general facts and chronology of events which led to the present proceedings were not a matter of dispute between the parties. Mr Hong was born in Saigon, in what is now the People's Republic of Vietnam, on 23 May 1973 (T5). Mr Hong grew up with his family in Saigon until the age of 11. His parents owned a small shop. Mr Hong had no formal schooling while he was in Vietnam although his parents hired a private tutor for him from time to time (see R2).
In February 1985 Mr Hong left Vietnam with his elder sister, Vit Hue (born 27 September 1959) and two brothers, Le Minh (born 19 March 1968) and Ng Hia Minh (born 20 February 1972) and voyaged on a boat to Indonesia. They then spent about 13 months in a refugee camp before being granted entry to Australia as refugees from Vietnam. In the application for refugee resettlement made by Vit Hue Hong on behalf of herself and her siblings it was noted that the reasons for leaving Vietnam were:
The ethnic race of my family is Chines [sic]. On the other hand my family is a capitalist family in regards of Vietnam communist. Because of these 2 reasons, after 1975, my family has had many obstacles which were created by Vietnam communist.
As far as I was concerned, because of the political situation of my family I have not had any job, I have not been to go to school.
For the sake of my family and of myself, because of the reasons as above I have decided to escape from Vietnam with my three siblings
(T5: 19)
In an accompanying record of an interview, conducted by an official of the respondent at the time of considering Ms Hong's resettlement application, it was reported that her family had owned a bicycle tube and groceries shop prior to 1975. In 1978 this property was confiscated and Ms Hong's father had been sent away for re-education. The father had become ill and returned home and Ms Hong then took his place. She too became ill, possibly because of malnutrition, and left without permission to return home in 1979 (see T6).
Mr Hong entered Australia as a migrant on 25 March 1986, under the Indo-Chinese Refugee Program, in company with his two brothers and his sister (T23: 74). At the time Mr Hong was 12 years of age. Upon his arrival in this country Mr Hong commenced his education at Mt Pritchard Primary School where he spent a period of about four months.
The family had then moved to Canley Heights and he had changed schools but shortly afterwards his sister had heard from Vietnam that his mothe [sic] had died and he had spent two weeks at home. When he had returned to school he was told that he was not on the class roll.
He had later spent two months in a school at Liverpool before the family had again moved and he had gone to Fairfield West High School, being placed in Year Eight. However his English was still poor and he felt that there was no way that he could catch up. His sister had then learned that his father had pre-deceased his mother by about six months and he had stopped school for a period of some weeks. During this time he had had an argument with his sister and left home. He had lived with some other boys on the street for some weeks and it was during this time that he had been first charged, apparently as a 'fall guy' for one of his more streetwise associates. He had returned home and attended school for a short period but had finally left school at the end of 1990.
Mr. Hong had then obtained work in a quilt factory but hadn't liked it because there was a lot of dust. He had been laid off after about two months. Shortly afterwards he had obtained work in a local fish shop but had found that the work was very hard and involved heavy lifting. He had left after a relatively short time. Following some time on unemployment benefit the Commonwealth Employment Service had found him work fencing at Lansvale. He had some problems with the thinners in use on the work site and was laid off when the job finished.
He had then spent his time in games shops and had been involved with a drug using population. He has no other major social ties.
(R2)
As noted in this social history, prepared by Dr Gordon Davies in circumstances which will be described later in this decision, Mr Hong's first contact with the criminal justice system occurred during 1990, the last year in which he was at school. That contact consisted of a conviction at the Minda Children's Court on 5 January 1990 of an offence of demanding money with menaces. The offence was committed on 5 October 1989. Mr Hong was sentenced to a 12 months good behaviour bond.
Mr Hong's first involvement with the adult criminal justice process, and also his first drug related conviction, occurred in May 1992 when he was convicted at the Fairfield Local Court in Cabramatta of an offence of possess prohibited drug (cannabis) and fined $300 (see in general T: 44-47; T: 99-103). Mr Hong's subsequent list of criminal convictions is show in Attachment 1. He was sentenced to his first term of imprisonment in February 1993 for offences involving the possession and supply of a prohibited drug, heroin, and resisting arrest. Further drug offences followed over the succeeding two years with sentences of imprisonment being imposed. However, it was not until March 1995 that Mr Hong was convicted of drug offences which resulted in a term of imprisonment which brought him within the provisions of s201 of the Act. On 14 March 1995 he was convicted on a number of offences at the Liverpool Local Court including two counts of possess prohibited drug and two counts of supply prohibited drug for which he received sentences of 12 months imprisonment (T22).
Following this conviction the respondent's officials prepared a report concerning his eligibility for deportation (T23). The report noted that Mr Hong's length of lawful permanent residence prior to the commission of the deportable offences was approximately 9 years. The report also noted the following factors weighing in favour of or against deportation:
FACTORS IN FAVOUR OF DEPORTATION
(i)        The seriousness of the deportable offence.
(ii)       His criminal history.
(iii)      His risk of recidivism being assessed as high.
(iv)      His lack of contrition.
(iv)[sic]The cost to the community from Mr Hong's illegal activities and periods of imprisonment.
FACTORS AGAINST DEPORTATION
(i)Mr Hong arrived in Australia when he was twelve years of age and may suffer some hardship reacquainting himself with life in Vietnam.
(ii)Although difficult to assess, Mr Hong's sister may suffer some emotional hardship if her brother were deported.
Mr Hong has a lengthy history of serious drug offences. From prison reports, his behaviour appears to be unsatisfactory, and there is no evidence that he has attempted to address his criminality.
In light of the above it is submitted that the factors in favour of you ordering the deportation of Mr Hong outweigh those against.
(T: 81-82)
Based on this review the respondent's officials recommended to the Minister's delegate that Mr Hong should be deported. On 16 December 1997 the Minister's delegate, Mr Mark Anthony Sullivan, ordered Mr Hong's deportation. At the time of making this order Mr Sullivan stated that:
Mr Hong continues a life of crime and shows little prospect of rehabilitation. Deportation would seem the only way of protecting the Australian community.
(T: 83)
Mr Hong was served with a copy of the deportation order on 17 February 1998 (T: 88). On 23 February 1998 Mr Hong lodged an application with the Tribunal (T1) for review of that decision.
ACT AND POLICY DIRECTION
Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies. A non-Australian citizen who has been in Australia for a period of less than ten years in aggregate, and has been convicted for an offence for which he or she has been sentenced to imprisonment for not less than one year, is liable to be deported (s201). It was not a matter of dispute that Mr Hong's conviction on a number of offences including two counts of possess prohibited drug and two counts of supply prohibited drug made him liable to deportation within the provisions of the Act.
When Mr Hong was convicted of the deportable offences, guidance as to the exercise of the discretion under s200 of the Act was to be found in Australia's Deportation Policy issued by the then Minister on 24 December 1992 (the Policy). The well established approach taken by the Tribunal to that Policy was that, in the absence of any good reason to the contrary, it should be taken into account in deportation proceedings. This was the approach which was adopted by the Tribunal in the hearing of Mr Hong's case by Gerber DP in January 1999.
On 21 December 1998 the current Minister issued a new General Direction under s499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation Under Section 200 of the Migration Act 1958: General Direction – Criminal Deportation – No.9" (the Policy Direction). This Policy Direction was signed by the Minister on the date of its issue and superseded the previous Policy of 24 December 1992. Given this situation, it was now not a matter of contention between the parties that it was this new Policy Direction which required consideration by the Tribunal in addressing the issues involved in Mr Hong's case.
As the Tribunal has already indicated in a number of decisions published since the issue of the new Policy Direction it must, as a matter of law, give this document significant weight. A Ministerial Direction under s499 of the Act stands on a very different footing from general statements of policy as to the exercise of administrative discretion, such as the one formerly providing guidance on deportation matters. The nature of this distinction is made apparent in the following passage taken from the Full Federal Court decision in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238 (hereinafter Rokobatini):
The locus classicus on the part that government policy may play in merits review remains the joint judgment of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 418-422. Their strictures emphasise the importance of ascertaining, as a threshold question, whether the decision maker is under a statutory duty to regard itself as bound by government policy. In the present case s499(1) of the Act was such a specific statutory provision.
(per Whitlam and Gyles JJ at paragraph 12)
The Full Federal Court in Rokobatini also gave consideration to the way in which the Tribunal should give effect to the new Policy Direction. Whitlam and Gyles JJ in their joint judgment noted that this:
… brings into sharp focus the content of the Policy compared with the Direction. In considering this question, it should be borne in mind that the direction is not simply a list of relevant matters, it describes a process of decision making. The Policy has the same effect. Plainly, the text of each is quite different as, in our opinion, is their effect. The Minister, for example, submits that the Direction is 'tougher' than the Policy. Even if that is so (and it is a matter of debate) that illustrates the fact that it is impossible to equate one process with the other, or to assume that the outcome of following one will be the same as the outcome of following the other.
(paragraph 18)
Like its predecessor, the new Policy Direction makes it clear that the primary purpose of deporting a person from this country is to ensure the safety and welfare of the Australian community, and to exercise a choice on behalf of that community as a whole as to who should be allowed to remain within it (Policy Direction: paragraph 4). The new Policy Direction goes on to provide guidance as to the important factors which should be considered by a decision maker when determining whether or not a person should be deported. Two primary considerations to which a decision maker should have due regard are:
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.
(Policy Direction: paragraph 6)
Only the first of the primary considerations mentioned in the new Policy Direction have relevance to Mr Hong's case since it was not contended that he was involved in any parental relationship. Thus attention needs to be given only to the guidance contained in the new Policy Direction concerning the way in which decision makers should have regard to the expectations of the Australian community as a primary consideration. The Policy Direction states in part, that:
… There are two aspects to community expectations:
the expectation that the community will be protected and not put at risk; and
the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
(Policy Direction: paragraph 8)
The Policy Direction also states that three factors are relevant to an assessment of the level of risk to the community and the need for its protection:
the seriousness and nature of the crime;
the risk of recidivism; and
the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
(Policy Direction: paragraph 10)
Given the importance and relevance of the three factors which have just been listed, attention is now turned to the evidence before the Tribunal in relation to each. Following this review the evidence is examined concerning certain other factors which the Policy Direction indicates require consideration by the Tribunal.
EVIDENCE
Seriousness and Nature of the Crime
Only scant information was made available to the Tribunal concerning the circumstance surrounding any of the offences committed by Mr Hong throughout his criminal career, including the deportable offences. As the respondent's officials observed in their report to the Minister's delegate in December 1997, written transcripts were not available at that time in proceedings before New South Wales local courts. Thus no official record was kept of the comments made by the Magistrate who sentenced Mr Hong at the Liverpool Local Court in March 1995 (see T: 76).
The only description that was available to the Tribunal concerning the events which led to Mr Hong's arrest in regard to the deportable offences was a Facts Sheet prepared by the police shortly after Mr Hong had been taken into custody on 9 March 1995 at the Cabramatta Police Station. The police Facts Sheet said, in part, the following:
FULL FACTS: At 5.05pm on Thursday 9th March, 1995 the deft. approached an undercover Police Officer and supplied him with two caps of heroin for $80.00. in the Arthur Street, Carpark, Cabramatta. The deft. meet with the same undercover officer at 5.55pm in the same carpark and supplied the [sic] him with 5 caps of heroin for $180.00. When other Police approached the deft. he ran through the carpark, whilst running away the deft. threw $180.00 on the ground. The deft. was apprehended a short distance away. Police located the money and the deft. was cautioned and placed under arrest. The deft. was conveyed to Cabramatta Police Station where he refused to be interviewed.
1. Supply Prohibited Drug – 2 Caps
2. Supply Prohibited Drug – 5 Caps
3. Possess Prohibited Drug – 2 Caps
4. Possess Prohibited Drug – 5 Caps
5. Goods In Custody - $80.00
6. Goods In Custody - $150.00
Street Value: $260.00
Weight: 1.5 grams
BAIL: It is requested that bail be refused due to the following facts:
1. The deft. has no fixed place of abode.
2. The deft. has three previous supply heroin offences.
3. The deft. supplied twice to Police in the one day.
I.SAUNDERS
Constable 27814
Cabramatta Police Station
9th March, 1995.
(T: 240)

During the course of giving his personal testimony to the Tribunal Mr Hong did not dispute these facts or challenge the validity of any other aspect of his criminal record. He said that his involvement in the supply of drugs had been solely to maintain his own heroin addiction. He had become involved in drugs in 1992. At the time he was jobless, feeling bored and drifting around the streets of Cabramatta. He had then met a person who had introduced him to heroin. Mr Hong described this introduction in the following way:
THE INTERPRETER: In the beginning I did not know that he is a user himself, he was a user himself. And later I found out is because he invited me free of charge to test some of his. In the beginning I refused. Then over a period of time I tried it. In the beginning I loved it. I knew I was addicted, I feel so helpless and couldn't help myself. So, I changed to use a syringe and that's how I started.
MR MILES: Why did you commit the crimes, particularly providing drugs to other people?
THE INTERPRETER: I didn't know much about life. He was with me, he was the one seduces me. So I got addicted was when I was with him and he was a drug pusher. I had no choice because I need the drug on a daily basis. Therefore, I help him out.
(transcript 17 April 2000: 38)

Risk of Recidivism
Policy Direction

Paragraph 13 of the Policy Direction provides guidance to decision makers about the factors which should be considered when assessing the risk of recidivism. The Policy Direction makes it clear that a person's previous general conduct and total criminal history are highly relevant to assessing this risk. In particular, the following factors will also be relevant to that assessment:
the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably be expected to make.
(Policy Direction: paragraph 13)

Criminal Record

It was not contended by the respondent that any prior warning had been given to Mr Hong about the risk of deportation prior to the Minister's delegate's decision to deport Mr Hong on 16 December 1997 (Policy Direction: paragraph 13(a)). It was contended, however, that after Mr Hong had been served with a copy of the deportation order in February 1998 (T: 88) he was convicted and sentenced to a further term of imprisonment. This conviction took place at the Fairfield Local Court on 31 August 1998 following Mr Hong's plea of guilty to charges of possess prohibited drug and goods in custody (see in general T: 219-240). As in the case of the deportable offences, no detailed description was available to the Tribunal concerning the circumstance surrounding the commission of these offences but a short transcript of the proceedings before the Fairfield Local Court on 2 September 1998, when Mr Hong was sentenced to a period of three months imprisonment on each of the charges, included the following exchanges between Mr Hong's legal representative, Ms McKenzie, and the Magistrate involved in his case:
MS McKENZIE: Well at this stage, your Worship, despite what might be inferred from the facts, he was charged with possess prohibited drug and goods in custody. He has entered a plea of guilty at the first available opportunity. He has in fact been assessed as suitable for supervision on the basis that he has obviously indicated a willingness to participate in the Odyssey House rehabilitation program. Your Worship may not have a great deal of confidence - - -
HIS WORSHIP: To participate in the Odyssey House program he has got to be assessed. He needs to have gone there to be assessed. So, I do not make orders that release people on the basis they may go to Odyssey House.
MS McKENZIE: Well, perhaps that could be interpreted as, he has obviously indicated the willingness to enter the rehabilitation centre, to the probation officer. She has assessed his genuineness in regard to that and has assessed him suitable for a supervised good behaviour bond on the basis that he comply with any directions of the Probation and Parole Service in relation to entering a rehabilitation centre. Given the nature of the charges, despite his criminal antecedents, your Worship, which is certainly not of any assistance to him, they are - - -
HIS WORSHIP: Well, he is clearly still involved in the heroin trade, Ms McKenzie.
MS McKENZIE: But, it does indicate certainly, that he has involvement with heroin and certainly has an ongoing drug problem. That is of no doubt, and that is why he is before the court today. He may benefit from a supervised good behaviour bond. It would give him enough rope to hang himself if he does not take this opportunity to comply with the probation directions. I would be asking your Worship to consider that option, given the nature of the charges, despite any inferences that can be drawn from the facts before the court. Your Worship is not with me on that and he is unsuitable for community service. In that sense, your Worship is not left with a great deal of leeway. It is either imprisonment or a good behaviour bond and a fine. If your Worship were to consider a term of imprisonment, then I would be submitting that given the nature of the charge, it is a matter for which a periodic detention order is appropriate.
HIS WORSHIP: Thank you. As indicated, Mr Hong, it seems to me that the facts of this matter indicate that you are clearly still involved, more likely than not, in the supply of heroin and certainly involved in the distribution of it in some way. But as your record shows, it appears that despite sentences in the past of imprisonment – longer sentences than I am going to impose today – you still elect to be involved in that situation. In each matter convicted, each offence has three months hard labour from 29 August. Property to be forfeited. Drug to be destroyed. He can go back into custody, thanks.
(T: 220-221)
Mr Hong was released from prison after serving this last sentence on 26 November 1998 but was taken immediately into immigration detention under s253 of the Act. He has remained in immigration detention since that date.
It was also contended by the respondent that Mr Hong's history of criminal offending, dating back to 1990 when he was first convicted of an offence in the children's court, did bring him within the parameters of paragraph 13(b) of the Policy Direction. As noted earlier, Mr Hong did not dispute the nature of his criminal record. There was, however, significant dispute between the parties about the nature and scope of Mr Hong's prospects of rehabilitation (Policy Direction: paragraph 13(c)). Attention is now turned to the evidence presented to the Tribunal about this particular factor.
Performance in Prison
At the time of considering Mr Hong's liability for deportation the respondent's officials obtained a report from the New South Wales Department of Corrective Services about his conduct in prison while serving the custodial sentence imposed for the deportable offences (see T: 78; T14). The Correctional officials stated Mr Hong had been enrolled in an English as second language course. He only associated with other Asian inmates and he was a difficult and uncooperative inmate. The Deputy Superintendent of the prison in which Mr Hong was then held stated that he did not believe he would succeed on parole given his behaviour and his attitude towards staff (T: 43). The prison records also showed that while serving his sentence Mr Hong was convicted of a number of offences within the prison including several of having drugs detected in his urine (see T: 47).
In addition to this evidence about Mr Hong's performance while in custody the Tribunal also had before it more recent information concerning his conduct while held in immigration detention since November 1998. In a report prepared by a Correctional official at the Metropolitan Remand and Reception Centre (MRCC) at Silverwater shortly before Mr Hong's case was first considered by this Tribunal in January 1999, it was noted that he had commenced employment within the headphone workshop at the MRRC. No adverse reports had been received from officers about his work performance and he had adhered to all instructions given to him by staff as well as with other prison regulations. However, it was also stated that Mr Hong had been involved in:
… a major incident when housed in DARCY on 30/08/98. In this incident he struck an officer in the face which resulted in the officers using force to quell the situation and inmate Hong. He was placed in segregation for a period of 14 days for his involvement in this incident.
Since his release from segregation on the 13/09/98 there has been no report or incident or adverse reports against him. Hong receives regular visits from family and friends as per the computer system. As for Hong reoffending once he is released into the community I cannot comment.
(R1)
A further performance report was provided to the Tribunal from the Assistant Superintendent and Case Manager at the Parramatta Correctional Centre, Mr Roy Puckering, dated 14 April 2000 (R1). This report stated that since the earlier appraisal provided in January 1999 from the MRRC Mr Hong had been transferred to a number of other correctional facilities and was most recently housed at the Parramatta Correctional Centre where he had a reduced security rating of C1. A review of his case file showed that his attitude and conduct had been good with only one incident of misconduct being that of failing to attend a muster in August 1999. The report also stated that:
… Running sheets state that he is quiet and polite to staff, maintains a clean and neat appearance, and mainly keeps to himself. HONG was unemployed whilst at M.M.T.C., and is unemployed at Parramatta.
HONG has not contacted education whilst at Parramatta, however his Case File shows that he participated in Programs whilst at M.M.T.C. Certificates are on file for
·Numeracy and Mathematics: Numeracy for Practical Purposes (2/9/1999)
·Numeracy For Practical Purposes-Measuring (30/9/1999)
·English as a Second Language (13/7/1999)
(R1)
During the course of his personal testimony Mr Hong denied striking an officer in the face as had been suggested in the report noted earlier (see transcript 18 April 2000: 30-33). Mr Hong said that he was the victim of this incident and that he had been caught up in an event which involved a number of offenders. He did not deny that he had subsequently been found guilty of striking the officer and had served a period in segregation for the offence. Following this testimony by Mr Hong the respondent called as a witness on his behalf a prison officer, Mr Michael Leonard Green, who said that he was the correctional official involved in the reporting of the incident as well as the victim of an assault by Mr Hong (see transcript 20 June 2000: 14-16). Mr Green also said that a number of other inmates had been involved in the incident and that it had taken some 15 to 20 minutes to contain the fracas which had occurred during the course of a routine counting of inmates prior to them going to lunch.
Drug Addiction: Medical Assessments
As is already apparent from the evidence reviewed so far a central issue in Mr Hong's risk of recidivism, and related prospect of rehabilitation, has been his ongoing involvement with drugs. At the first hearing of this matter before Gerber DP evidence was presented by two medical experts concerning Mr Hong's use of heroin and the attempts made to provide treatment for his addiction through the prescription of methadone (see in general T: 147-177). It was not a matter of dispute between the parties that since his most recent and ongoing period of detention Mr Hong had not used heroin, nor had he opted to participate in any methadone treatment program.
At the hearing before Gerber DP, Dr Stella Dalton, a well-known and highly regarded psychiatrist with very extensive involvement in the treatment of drug addiction, gave a portrayal of the ease with which persons like Mr Hong could become involved with and addicted to heroin in Sydney. She said:
… it is very easy for someone to become addicted in Sydney at the moment as we all know, it is very available it has been very available for many years. Now when a person becomes addicted it starts insidiously, they start taking a little bit they don't intend to get addicted. Somebody generally suggests they try it. Once they become addicted the picture changes totally. They are then obliged to continue taking the drug or they get exceptionally ill, they go through withdrawals which are excruciatingly painful and they have this total need to obtain the drug by any means to avoid this terrible illness, those terrible feelings. Therefore, people who are addicted whether they be doctors who are addicted to pethidine or street kids who are addicted to heroin, they all have to obtain their drug. When a person is addicted to a drug, especially an opiate – again I'm comparing the medical profession with the ordinary person in the street. Whichever area they come from, they become deceitful, they go in for varying crimes, the kind of crime obviously changes whether you're a top doctor or whether you're a street kid. But the same way as a doctor will lie and do everything they can to obtain pethidine, you will find the street person selling obviously to make enough money to be able to obtain their drug and doing petty crime in order to again, obtain money to be able to get the drug. Because without it, they cannot function and they get exceptionally ill. Anything else?
I haven't got the record in front of me but this particular street kid as I suppose as he has become has committed his crimes it would appear selling a little bit of heroin providing a little bit of heroin to get enough heroin for himself - - -?---But all heroin users sell a certain amount in order to have enough money to obtain it for themselves or to be able to continue taking their drug which is essential.
Well now this particular lad has been convicted a number of times for provide [sic] heroin, always in the Magistrates [sic] Court he has never been as far as I can see involved in a big heroin deal or anything of that nature?---Yes.
Is this fairly common in your experience with heroin addicts? This practice of committing this crime of selling heroin for the purpose of obtaining their own supply?---Absolutely.
Do you find that to be common within the heroin circle?---Definitely, all heroin addicts, I mean you would have to be a millionaire otherwise to be able to continue paying for it. But heroin addicts all have to sell because they buy, they sell some and then they can afford to take it themselves. Is that clear or not clear?
(T: 148-149)
Dr Dalton went on to express her opinions about the nature of the treatment programs that were available to deal with heroin addiction including both methadone and naltrexone. She said the accepted method of treating heroin addiction was to provide methadone as a substitute and that this was the only genuinely effective program which allowed a drug addict to perform in a normal fashion in society. Dr Dalton said that she viewed naltrexone as an "absolutely hopeless" treatment alternative. The only way that the craving created by heroin could be removed and an addict turned into a normal individual was to fill their opiate receptors with a high dose methadone. Dr Dalton said that there was "no cure, as it stands, for heroin, there is no absolute cure for an opiate". She also said that:
… once a person is an alcoholic or once a person is a heroin addict they have this compulsion which is overpowering to get the drug and to obtain it by any means and to avoid going into a state of withdrawal and in the case of the alcoholic it's the compulsion which is overwhelming. The same thing with a heroin addict, as you will remember in the early days heroin addicts used to go to gaol, they would be kept there for a while and on the first day out after a matter of months they would go and take a hefty dose of heroin because it's a compulsion again, as soon as they came out.
(T: 152)
Dr Dalton was not involved in any way in the treatment of Mr Hong. However, another medical witness who testified before Gerber DP, Dr P. Halder, did have personal knowledge of Mr Hong's case as his treating doctor between 1994 and 1998 (T: 165). Dr Halder said that Mr Hong had been prescribed methadone on a periodic basis during this time but that he was not a keen participant in the methadone program. He had come on and off methadone about ten times and his progress had not been positive nor had his motivation. Dr Halder said that Mr Hong was also reluctant to take a sufficiently large dose of methadone which would minimise his desire to use heroin:
And he refused to raise his dosage?---Well, he said, 'I don't want to go up but I'm happy with on this dose', but his amino-urines were a positive heroin use. Well, you see, one of the things over the years, I mean, I have a harm minimisation attitude to the use in heroin addiction. I mean, we cannot make heroin users completely stop if they're minimising the harm that they have already done to themselves, so in a methadone clinic, the clinic will say, look I was using seven days a week and two weeks later they'll say I'm using twice a week. For me that's an improvement and so therefore if they are on methadone at 40 milligrams and they say, look I'm using once a week doctor, I mean I have a trust with him and then I'll say I think the dose is inadequate you should go up. If the client says look no, doctor, I don't want to go up I'm happy on this but I'm using once a week I'll leave it at that because they have to make the decision whether to go up. But you have to counsel them that this dose is inadequate, you have to go up. Now it's their prerogative as a treatment and a therapist that no to force them to raise their dose up you gave them the option and so I gave him the option in which he didn't want to, so I kept it at that.
(T167)
In his personal testimony to the Tribunal on the present occasion Mr Hong did not dispute his dislike of using methadone but he expressed hope about his prospects of not resuming his general drug use should he be released from prison and allowed to remain in this country. Mr Hong's assertions were challenged during the course of his cross-examination by Mr Johnson who suggested to him that once the threat of deportation was removed there was an even greater prospect of him returning to the use of drugs. Mr Hong responded by saying that he was now aged 27 years and that he was maturing. He anticipated that with the assistance of his family he would be able to "depart from the white powder" (heroin) (transcript 18 April 2000: 37-38).
Additional expert medical testimony was provided to the Tribunal at the present hearing to supplement that already provided by Drs Dalton and Halder at the earlier proceedings. Two forensic psychiatrists, Dr Gordon Davies and Dr Thomas Clark, provided written and personal assessments of Mr Hong's prospects of rehabilitation. Both Dr Davies and Dr Clark were in agreement that Mr Hong was not suffering from any diagnosable mental illness (see in general R2: R3: and A3). Reviewing the situation overall in Mr Hong's case Dr Davies concluded that:
… Mr. Hong's primary problem is his drug addiction and that there is a high chance of this relapsing and leading to further criminal behaviour, particularly in the absence of stable and supportive family relationships and his apparent lack of motivation to substantially change his lifestyle.
I concur with the views expressed by both Dr. Dalton and Dr. Haldar about the use of methadone in adequate dose to prevent concurrent heroin use and to allow lifestyle change. It is however not uncommon for opiate addicts to try to use a small does as this allows them to over-ride it with intravenous heroin and at the same time limit the extent of their withdrawal symptoms. This does not indicate a good prognosis and although I run a very tolerant programme myself on the history given, I would have terminated his treatment on the basis of non-compliance.
You have also asked me to comment on the possibility of suicide. There was nothing in his interview to suggest that he suffered or suffers from a major depressive illness or that he had contemplated suicide even if he were deported. His major risk of premature death is from drug overdose.
(R3)

In the course of giving his personal testimony to the Tribunal Dr Davies was questioned at some length by Mr Miles, on behalf of the applicant, about the implications of Mr Hong being drug free for a period of about 20 months while he had been in detention (see in general transcript 19 April 2000: 90-101). Dr Davies said that it was a definite advantage that Mr Hong had been opiate free for a quite lengthy period. The problem was that upon release from detention the situation could change because people went back to using heroin because they liked it - it made them feel good and this was the hardest thing of all to deal with in drug addiction. Even with the support of his family and the threat of deportation over his head he had still used drugs again and was now in detention for this reason.
Dr Davies said that if he were treating Mr Hong upon his release, and in a situation in which he had been completely free of heroin for the time that he was in gaol, he would put him immediately on naltrexone, an opiate blocker. If, however, Mr Hong started using heroin again then he would put him on methadone. Dr Davies said that with family and allied support Mr Hong could anticipate he had "a chance, I don't think I'd go so far as to say it's a good chance, but he has a chance" of not returning to drug use (transcript 19 April 2000: 100).
Dr Clark reported that based on his assessment of Mr Hong he had developed a chronic depression which went back to at least his early teenage years and it was this which had led him into a sub-cultural trap where he became addicted to heroin (A3: 5). He said that in his opinion the diagnosis he had made fitted within the framework of the Diagnostic and Statistical Manual 4th edition of the American Psychiatric Association (DSMIV). Dr Clark said that it was remarkable that there were no psychiatric reports or comments on his condition in his prison medical record and his history disclosed that there had never been any proper psychiatric intervention to deal with his condition, including appropriate trials of anti-depressant medication. Dr Clark said that he also believed that Mr Hong fitted the DSMIV criteria for a person who had a dependent personality disorder. This disorder was described as:
A pervasive and excessive need to be taken care of that leads to submissive and clinging behaviour and fears of separation, beginning by early adulthood and present in a variety of contexts ...
(A3: 6)
In the course of giving his personal testimony to the Tribunal Dr Clark said that if he was the treator of Mr Hong upon his release from prison he would ensure that he received regular psychotherapy to deal with his depressive illness. He felt that the drug addiction was secondary to this depression. Dr Clark also said that if, as had been suggested, there was a possibility that Mr Hong might go to live in Queensland with his sister, should he be allowed to remain in Australia, this would be a good plan because it would get him out of the environment where he had been attracted to use drugs. He said that Mr Hong was at an age, 27, where he had to face up to his future more positively or else go right down. This was quite a turning age for a lot of personality disorders and experience suggested that not many people went back to prison after their later twenties. Dr Clark also informed the Tribunal that he had already contacted a psychiatric colleague who practiced in the Brisbane area to which it was proposed Mr Hong might relocate to live with his sister. That psychiatrist, who was a Cantonese speaker like Mr Hong, was familiar with the treatment problems confronting Mr Hong (see in general transcript 20 June 2000: 28-33).
Dr Clark was cross-examined extensively by Mr Johnson about the validity of his diagnosis of Mr Hong as a sufferer of a depressive illness. Mr Johnson also questioned Dr Clark about the reported diagnosis of Mr Hong as infected with hepatitis C. Dr Clark suggested that there were quite a few spontaneous remissions from this condition, particularly when addicts were kept drug free. Serum treatment could also be used to assist to combat the virus and keep it under control. Such treatment would only be instituted, however, when a person had an abnormal liver function and no testing had been done in Mr Hong's case to see whether or not he was at that stage of disability as a result of his hepatitis C (see in general transcript 20 June 2000: 61-63).
The Tribunal also asked Dr Clark about his view of the conclusion reached by Dr Davies in his report (R2/R3) that Mr Hong's primary problem was his drug addiction and that there was a high possibility of relapse, particularly in the absence of stable and supportive family relationships and his apparent lack of motivation to change. Dr Clark responded in the following way:
THE WITNESS: I don't think he is a pure heroin addict. I see his heroin addiction has been secondary to his – secondary to his depression and this peculiarity of character he has where he just gives up and becomes hopeless and takes to the – takes the drug rather like – it is more our of hopelessness he is taking the drug, in my opinion than in a – just for fun, or for kicks, or for whatever the primary – not a primary heroin addict like primary alcoholics just are addicted to the substance, and that is the problem. They are the ones with the best response to methadone and to the modern treatments for alcoholics such as … but I see it as being a bit more complicated than that.
THE D.PRESIDENT: Yes. A little later on in the same report, after referring to the methadone issue which you have just mentioned, Doctor Davies says, and I quote again:
You have also asked me to comment on the possibility of suicide. There was nothing in his interview to suggest that he suffered from a major depressive illness.
THE WITNESS: Yes, I agree. Major depressive illness is a definite classification to dysthymia.
THE D.PRESIDENT: So the dysthymia is in fact something which is - - -
THE WITNESS: Is a chronic recurrent rumbling depression, apathy, listlessness, lack of motivation, those sort of things, rather than sitting not eating and not sleeping and all that which goes to major depression.
THE D.PRESIDENT: And you are saying that Doctor Davies either did not perceive this particular disorder or illness in his examination or he - - -
THE WITNESS: Well, he certainly didn't consider a nexus to diagnosis. I said personality diagnosis because normally one hopes one – the two diagnosis added together.
THE D.PRESIDENT: Why do you think he did not - - -
THE WITNESS: Some of us do tend to simplify things sometimes too much for lay people I think and just tend to miss out the complications of modern psychiatry, but certainly, if you did that in an exam they would fail you, let us put it that way. If you went for your membership exam at the Royal College of Psychiatry and put in that – the two diagnosis, then you would get thrown out. You wouldn't be allowed to be admitted, but people do things for different reasons in these sort of reports. Psychiatrists too, I mean, there is the overall personality picture usually has to be demonstrated as well as any specific mental disorder or emotional disorder.
THE D.PRESIDENT: Do you agree with the final sentence of this report which I have just quoted from Dr Davies in which he says:
His major risk of premature death is from drug overdose.
THE WITNESS: Yes, that is about – or with infection, yes.
(transcript 20 June 2000: 65-66)

Deterrence

A third factor referred to in the Policy Direction relevant to an assessment of the level of risk to the community is the possibility that the deportation of a person like Mr Hong will act as a deterrent to others (Policy Direction: paragraph 14). The Tribunal did not receive any specific evidence regarding this factor but the issue will be discussed further at the conclusion of this decision.
Hardship
Policy Direction
Paragraph 21 of the Policy Direction observes that:
It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include:
the degree of hardship which may be suffered by the potential deportee; and
the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration).
(Policy Direction: paragraph 21)
In assessing the degree of hardship which may be suffered by Mr Hong, paragraph 22 of the Policy Direction provides a list of a range of factors which are likely to be considered by decision-makers. This list includes:
whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported;
the degree and extent of the potential deportee's ties with the likely country of return;
the strength of other family, social or business ties in Australia;
social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.
(Policy Direction: paragraph 22)
It was not contended on behalf of Mr Hong that he now had any ongoing marital or defacto relationship with an Australian citizen or resident (paragraph 22(a). It was contended, however, that Mr Hong had spent the greater proportion of his formative years in this country, that he now had almost no ties with Vietnam, and that he retained strong family and related affiliations with Australia (paragraph 21(b), (c) and (d).
Family and Associated Ties
A number of witnesses, including Mr Hong's two sisters, brother and brother-in-law testified in person about his ties to Vietnam and Australia, as well as their perceptions of the hardship that he and his family would all experience should he be deported. Ms Vit Hua Hong, Mr Hong's elder sister and the person who had been involved in the original refugee application which led to his arrival in this country (see paragraphs 7-9 above) said that she had been about 25 years of age when she left Vietnam. She had married her present husband shortly after she came to Australia and both of them had worked at full-time jobs while also seeking to look after her two younger brothers. She said that with this work, and later with the arrival of her own children, she had found it very difficult to follow Mr Hong's progress at school. Both she and her husband felt guilty about their lack of attention to her brother's welfare. They had not been aware that he was in trouble with the school authorities, and later with the police, until contacted by officials.
Ms Hong said that if her brother was allowed to stay in Australia it was the family's plan that he should move to Queensland to live with his other sister. She too was married and had two children. Ms Hong said that her family had no relatives left living in Vietnam. She also said that while she would be prepared to assist her brother financially if he remained in Australia she would not be prepared to send any funds to help him should he be deported back to Vietnam. This was because of her strong feelings about the communist regime in that country (see transcript 18 April 2000: 68-70).
Ms Hong's husband, Mr Arthur Lam, also testified on behalf of Mr Hong. He confirmed the problems described by his wife that the family had looking after Minh Duc. He also said that he had gone to the Children's Court at Minda to speak on his behalf. When Minh Duc had become involved in drugs the family had tried to talk to him and to get him to change but the situation simply became worse and they felt powerless about what they could do to assist him. Mr Lam said that he too was from Vietnam although was now an Australian citizen. He had fled from the communist regime in 1978 and had not been back to that country since then. He believed that Mr Hong would be assisted by living with his other sister in Queensland (see in general transcript 19 April 2000: 47-70).
Ms Tua Hoa Hong, Mr Hong's sister living Queensland, testified that she wished him to come and stay with her family if he were not deported. It was the intention of the family to assist Minh Duc to go to school and also seek employment. She thought it would be possible to get Mr Hong to undertake studies at a TAFE in Brisbane, and she also felt that she would be able to assist him to obtain a job in the restaurant where she worked. The family in general was prepared to assist Mr Hong in a modest way financially, including getting medical and related treatment (see in general transcript 20 April 2000: 16-22).
Under cross-examination by Mr Johnson, Ms Hong admitted that she was worried about the possibility that her brother might use heroin again. She denied that the plan for her brother to come to Queensland was only a hasty decision taken at the last moment. Ms Hong said that should her brother start taking heroin again she would hand him over to the police. She confirmed that like her sister she was not prepared to send to Vietnam any financial assistance for her brother should he be deported to that country (see in general transcript 20 April 2000: 23-24).
Conditions in Vietnam
The Policy Direction (paragraph 22(f)) includes among the list of factors which should be considered by decision makers when assessing the degree of hardship which may be suffered through deportation, "the situation in the country of proposed return, including the overall environment, job opportunities, and the possibility of additional criminal sanctions". Specific evidence was presented, on behalf of the respondent, by three witnesses in regard to this particular issue.
Ms Helen Jane Campbell, a First Secretary with the Australian Embassy in Hanoi, said that her responsibilities were to report on general macro-economic issues associated with the Vietnamese economy. She said that the national unemployment rate in Vietnam during 1999 was around 7%. The employment situation in Ho Chi Minh City (the former Saigon) was slightly better than in other urban centres while the unemployment rate in rural areas tended to be much worse. Ms Campbell said that she did not have any personal experience of discrimination for employment purposes being made against people of Chinese ethnic origin. More than half of the businesses in Ho Chi Minh City were privately owned by Vietnamese citizens of Chinese extraction (see in general transcript 20 April 2000: 51-53).
Ms Campbell said it was a distinct advantage for a person to be able to speak English in regard to obtaining employment. Ms Campbell also said that a person's employment opportunities would be very much influenced by his or her professional qualifications, including level of education. A person who did have a history of drug use might be at a disadvantage compared with other applicants for employment positions. Ms Campbell said that the average city worker might earn US$150 per month while a rural income would be more likely to be around US$150 per year (transcript 20 April 2000: 56-58).
Cross-examined by Mr Miles Ms Campbell confirmed that her principal knowledge and professional experience was in the area of macro-economic development. She agreed that life in Vietnam was difficult and that it was a poor country (transcript 20 April 2000: 58-61). The Tribunal asked Mr Campbell whether there was any form of social assistance available to a person who arrived in Vietnam without employment. Ms Campbell said there was not and that as in many Asian countries people relied very much on extended family networks to assist them. It was also quite common for money to be sent from overseas by relatives to assist their families in Vietnam. Ms Campbell said that there was also anecdotal evidence which suggested that drug usage was widespread in Vietnam and was regarded as a serious problem by the Government and the community. The drugs involved were heroin and amphetamines (see in general transcript 20 April 2000: 63-66).
Ms Amanda Marjorie Paxton, the First Secretary Immigration and also the Principal Migration Officer at the Australian Consulate-General in Ho Chi Minh City in Vietnam also gave personal testimony to the Tribunal. She indicated that it was part of her responsibilities to report on immigration matters in Vietnam including deportations and removals from Australia to Vietnam. She said that to her knowledge people who had departed from Vietnam illegally who returned were not punished in any way and were allowed to re-enter the community. This situation extended to persons who had been deported from Australia following the commission of offences in that country. Ms Paxton also said that she did not expect a person in a situation like Mr Hong, whose family had been members of the minor capitalist class and Chinese, to experience any persecution on those grounds if they were to return (transcript 20 April 2000: 73-79).
Ms Paxton was asked whether she had any knowledge of the availability of treatment or rehabilitation facilities for people with drug problems in Vietnam. Ms Paxton said that in Ho Chi Minh City she knew of two sorts of services or two major drug rehabilitation places. The first of these was at a traditional medical institute which offered hospitalisation of seven days and traditional medical treatment. This institute also offered some assistance with employment and a charge was involved of about AUD$150. Additional medical treatment concerned herbal medicine, acupuncture, massage and other similar therapies. On the other hand there was a second rehabilitation centre which offered the more typical kind of medical treatment for drug abuse (transcript 20 April 2000: 80-82).
Ms Paxton told the Tribunal that she had been involved in negotiations with the Vietnamese Government about criminal deportation matters. She said that during the course of these discussions no concerns had arisen about the rehabilitation prospects of drug addicts or other offenders. The main Vietnamese concern had been that they had a clear picture of the identity of the person being returned and were satisfied that they were in fact a Vietnamese national.
The Tribunal also asked Ms Paxton whether in the course of her negotiations with the Vietnamese Government any concern had been expressed about the return to Vietnam of citizens who it was said had no family or relatives remaining in the country. Ms Paxton said there was concern about the settlement prospects of people who were returning, including their family disposition in Vietnam. However, the authorities were also aware that they had an obligation to take back their own citizens if they had been excluded from other countries. During the past year there had only been one person who had been returned from Australia to Vietnam as a criminal deportee. Negotiations were continuing for the development of a Memorandum of Understanding to provide a framework for such deportations (transcript 20 April 2000: 91-92).
In addition to Ms Paxton's evidence concerning the availability of drug treatment programs in Ho Chi Minh City, personal testimony was also provided to the Tribunal by Dr Truong Thin, the Managing Director of the Institute of Traditional Medicine in Ho Chi Minh City. Dr Thin said that while trained in both western and traditional medicine his Institute employed traditional methods to rehabilitate people with heroin addiction problems. The Institute employed 35 doctors. The rehabilitation program for people with heroin addiction consisted of three parts. The first, which lasted for ten days, consisted of detoxification. The second part was very difficult. It did not require any reference to medicine but rather to the psychology of education. It was likely to be of a limited duration during which it was sought to avoid relapse into old habits involving drug abuse.

In the third part of the program those who had already made progress were then taught a trade or skill so that they could go back into society. In Ho Chi Minh City there were two or three centres involved in the second and third parts of the program which could take two to three years to complete but even then the success rates were low. The cost of the first part of the program would be around US$100 (see in general transcript 19 June 2000: 33-39).
Cross-examined by Mr Miles, Dr Thin said that he would be optimistic about a case like Mr Hong's who had not used heroin for a period of two years while in gaol. Dr Thin said that there had not been successful treatment of hepatitis C in Vietnam. They had also not been very successful in treating heroin addiction which was a very difficult matter and required treatment for the whole of a patient's life. Dr Thin also said that no members of his Institute spoke Cantonese and that a patient who attended with such a language background would require counselling and other advice from another organisation which did have staff who spoke Cantonese (see in general transcript 19 June 2000: 39-46).
CONSIDERATION
Policy and Submissions
As is clear from the general statement of facts and chronology of events set out at the commencement of this decision this matter has now been the subject of extensive review both by this Tribunal and by the Federal Court. The present hearing of this matter occupied seven days and the Tribunal had the benefit of receiving substantial and additional evidence about a number of the factors relevant to its decision making function within the framework of the Act and the Policy Direction.
In their respective submissions to the Tribunal both parties referred to the circumstances which had led to the remittal of the case back to the Tribunal by Madgwick J in the Federal Court. Mr Johnson, on behalf of the respondent, emphasised that it was now for the Tribunal to assess the merits of the case and any suggestion that these merits had already been assessed by Madgwick J, or that it was open to Madgwick J to assess them, was plainly incorrect. Justice Madgwick was hearing an appeal on a question of law and the case really was determined, as in the Full Court decision of Rokobatini by the fact that the Tribunal had regard to the old criminal deportation policy rather than to the new Policy Direction.
The Tribunal is in complete agreement with these contentions advanced on behalf of the respondent, recognising that it is now required to make a fresh decision on the merits having regard to all of the evidence presented during what was not only a protracted but quite strongly contested hearing. The Tribunal is also now able to have the benefit of the guidance and direction provided by a number of Federal Court decisions which have considered the interpretation of the new Policy Direction: see Rokobatini; Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713; and Lau v Minister for Immigration and Multicultural Affairs (2000) FCA 698 (hereinafter Lau). As the Full Federal Court said in the most recent decision of Lau, the Policy Direction makes it clear:
… that it is necessary to balance a number of important factors in reaching a decision as to deportation. A decision-maker is required to have due regard to the importance placed by the government on the two primary considerations nominated, but it states a balancing process should also be adopted, one which takes into account all relevant considerations. It is clear that it is open to a decision maker to regard the primary considerations as not governing the outcome in a particular case. It has been held that the Direction does not have the rigid operation as that for which the appellant contends: Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713 (Sackville J).
(per Kiefel, North, Mansfield JJ at para 29)
In his decision remitting the matter back to this Tribunal Madgwick J made observations similar to those which have just been cited from Lau. Justice Madgwick said that the Policy Direction envisages that in coming to its decision the Tribunal will:
… embark upon a balancing process which weighs, amongst other things, the harm that a deportee is likely to do to the community if allowed to remain in Australia against any hardship that the applicant and/or his immediately family are likely to suffer if he is deported. It is true that the direction also envisages that the balance is to be weighted in favour of the protection of the community and against the interests of the deportee. As I have indicated, however, the direction should not be read as requiring that hardship be practically disregarded whenever a strong case of risk to the community is made out. The direction itself explains the overriding philosophy in its 'Preamble':
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to deport from Australia those non-citizens who have abused the privilege of residence accorded to them by the Australian community. In exercising this power the Minister has a responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it. (emphasis added)
(T: 399-400; paragraph 29)
With these guiding principles in mind, and in accord with the terms of the Policy Direction, the Tribunal now considers the difficult task it must undertake of balancing the factors relevant to Mr Hong's case.
Expectations of the Community
The primary consideration to which the Tribunal must have regard in deciding whether or not Mr Hong should be deported is the expectation of the Australian community that it will be protected and not put at risk (Policy Direction: paragraph 8(a) and 8(b). The evidence which was presented to the Tribunal concerning the three factors relevant to the assessment of the level of risk to the community and the need for its protection has been set out above in substantial detail. Paragraph 11(a) of the Policy Direction has the following to say about examples of offences which are considered by the Government to be very serious:
11.(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 potential deportees 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 are 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 should be viewed as completely unacceptable to the community.
Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.
(T: 356-357)

In his submissions made on behalf of the applicant Mr Miles contended that the Tribunal should consider this provision in the Policy Direction very carefully. There were degrees of criminality and Mr Hong fell into a category where his own addiction had prompted the crime. He was not a master mind in the distribution of drugs in Australia. It was well known that addicts and others dependent upon heroin never played a major part in the real trade in heroin. They were simply used as messengers and small time peddlers. Mr Miles acknowledged that the applicant did fall within the framework of the guidelines as a result of his drug related conviction but that when consideration was given to both the maximum penalty that was available for such offences and the penalties that Mr Hong had received there was a big disparity.
In his submissions Mr Johnson contended that the Policy Direction did not require a process akin to that of criminal sentencing. Rather it was a question of looking at the particular activity involved in asking how, in the light of the Policy Direction, it should be viewed in terms of its seriousness and how the community would expect the Tribunal to regard the seriousness of the offence. At the very least, having regard to the wording of paragraph 11(a) the Tribunal should review Mr Hong's offences as very serious, especially as the paragraph of the Policy Direction also referred to offences involving heroin and other drugs of dependency as being of particular concern to the Government and to the community. Mr Johnson also contended that this conduct could be viewed as abhorrent within the terms of paragraph 15 of the Policy Direction, which reads as follows:
15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. Decision makers should have due regard to the Government's view in this respect.
(T: 359)
Mr Johnson further submitted that the Tribunal should be concerned not just with culpability but also with the ultimate protection of the Australian community, and the risk to the Australian community of allowing Mr Hong to remain in the country. Mr Hong had not only been convicted once of the serious offence of supplying heroin, but he came before the Tribunal with a very troubling criminal history involving the possession and supply of prohibited drugs. This conduct had continued even after he faced a deportation order, and made application for review of that order by the Tribunal.
The Tribunal has given careful attention to these submissions made on behalf of both of the parties as to the way in which it should seek to give appropriate attention to the dictates of the Policy Direction in the circumstances of this case. At first blush the provisions of paragraph 11(a) do seem to equate all forms of drug offending under the label of being "very serious" or "extremely serious". This includes offences committed by persons who have been involved in the supply of drugs motivated "by their own need for illicit drugs". An even greater level of gravity would seem to be envisaged under the terms of paragraph 11(a) for offences which involve "heroin and other illicit drugs of dependency or addiction". A rigid interpretation of paragraph 11(a) would thus seem to offer little hope for any potential deportee, involved in any form of heroin related supply of drugs, to avoid expulsion from the country, especially if such behaviour is also, as contended on behalf of the respondent, so abhorrent as to fall within the framework of paragraph 15 of the Policy Direction.
However, the recent decisions of the Federal Court referred to earlier make it quite apparent that the Policy Direction is not to be read in this way. As Madgwick J said in Hong:
20 On one reading of the direction (or the previous policy), a person convicted of drug trafficking would stand no chance of resisting deportation. It is implicit in the approach of Whitlam and Gyles JJ and also (indeed, more obviously so) of Katz J, that such a reading cannot be supported. The direction is to be read so as to ensure that it is not ultra vires: Pearce and Geddes 'Statutory Interpretation in Australia' 4th edn, p 43. Section 499(2) provides that subs(1) 'does not empower the Minister to give directions that would be inconsistent with this Act'. The expression 'this Act' must mean 'this Act other than subs(1) itself'. Section 200 gives the Minister a discretion to require, in effect, the banishment from Australia of an individual. Section 499(1) does not empower the giving of directions that would turn a discretion, touching 'human fate' (to adopt a phrase used by Toohey J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407) into [sic] no discretion at all. It follows that there must be a genuine weighing of factors tending to opposite conclusions and no artificial limitation of such factors. It is clear that those factors include all matters relevant to hardship for the potential deportee and his immediate family.
(T: 396-397; paragraph 20)
Further support for the view that the Tribunal must conduct a genuine weighing of factors associated with the primary consideration under review, namely the expectation of the Australian community, is to be found in paragraph 12 of the Policy Direction which, under the general head of "the seriousness and nature of the offence" observes that:
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.
(T: 358)
Having due regard to the sentence imposed for the deportable offences which have brought Mr Hong before the Tribunal it is clear that it is a sentence which falls at the lower end of a gravity scale which extends to a maximum of 15 years imprisonment under the provisions of the New South Wales Drug Misuse and Trafficking Act 1985. Indeed, the combined sentence of 12 months imprisonment imposed upon Mr Hong at the Liverpool Local Court on 14 March 1995 remains the most severe sentence he has received in the course of his criminal career. That career has been dominated by drug related offending, resulting in a continuing series of relatively short-term periods of imprisonment before his current and ongoing incarceration which incorporates a significant time spent in Immigration Detention.
An overall appraisal of the evidence concerning Mr Hong's criminal career suggests that, as a self-confessed heroin addict who was introduced to the drug while living the aimless life of a street kid in Cabramatta, he is one of countless numbers of offenders swept up as low level participants in the pernicious trade in narcotics. The passage quoted earlier from the testimony given by Dr Stella Dalton provides a graphic and accurate description of the way in which people like Mr Hong are recruited into the drug trade, and also the way in which they become expendable casualties of an illicit business conduct by unscrupulous and vicious traffickers. It is these traffickers, motivated no doubt by the huge profits to be made through their nefarious activities, who can properly be described as engaging in abhorrent behaviour of the type envisaged in paragraph 15 of the Policy Direction. In the Tribunal's view, Mr Hong's pattern of offending does not in any way meet this description.
Having reached this conclusion about the nature and seriousness of Mr Hong's offending, the question which must be addressed next is what level of risk does he now present to the Australian community. The expert evidence presented to the Tribunal concerning the risk of Mr Hong re-offending, and his associated prospects of rehabilitation, has already been canvassed in some depth. It is significant that each of the expert witnesses involved in these proceedings – Drs Dalton, Halder, Davies, Clark and Thin – agreed that the treatment of people like Mr Hong who are addicted to heroin presents a difficult challenge. Dr Dalton's comments about the compulsive addictive power of this narcotic has already been cited (see paragraph 37 above). Dr Dalton also observed that there was at present no absolute cure for this form of addiction although users could perform in a relatively normal fashion in society if they substituted sufficiently large doses of methadone for their intake of heroin.
Mr Hong has participated in methadone treatment programs as is apparent from his own testimony as well as that of Dr Halder. However, Dr Halder also indicated that Mr Hong had been both a spasmodic and reluctant participant in these programs and had been unwilling to take a sufficiently large dose of methadone which would diminish or neutralise his desire for heroin. Mr Hong expressed his own desire to remain free from the "white powder" if released back into the Australian community following his most recent period of imprisonment. Given Mr Hong's previous assertions of his wish to cease taking heroin, and his subsequent relapse following earlier periods in custody, the Tribunal places little weight on his latest expression of intent on this subject. It may well be that Mr Hong has a genuine desire to rid himself of his addiction but the possibility of him achieving his ambitions remain quite problematic. Even when made aware of the order for his deportation he re-offended and his general performance throughout most of his periods of imprisonment has been less than impressive, as illustrated by his commission of a number of internal disciplinary offences while being held in custody.
The Tribunal assesses the overall risk of Mr Hong continuing his pattern of drug related offending to be quite high, although the expert testimony was not entirely pessimistic about Mr Hong achieving a lifestyle free of drugs in the foreseeable future. Of the two expert witnesses who gave evidence before the Tribunal on this occasion, Drs Davies and Clark, Dr Davies was less optimistic than Dr Clark about the chances of Mr Hong returning to drug use. However, Dr Davies did say that he still had a chance of achieving rehabilitation and that his prospects were improved by the fact that he had been opiate free for a quite lengthy period. Dr Davies was not impressed, however, by the diagnosis made by Dr Clark that Mr Hong was suffering from a depressive illness and that his drug addiction was secondary to this depression.
The Tribunal found Dr Davies to be a most credible witness possessing extensive and long-term experience treating drug addicts. Dr Clark was also a credible witness with substantial experience in dealing with the treatment of drug addiction. The Tribunal expresses no view concerning the correctness or otherwise of his particular diagnosis of Mr Hong's psychiatric condition. Nonetheless, Dr Clark was quite encouraging about the proposal made for Mr Hong to move to Queensland to live with his sister should he be allowed to remain in Australia. In the event of such a decision Dr Clark said that he had already contacted a colleague who was a Cantonese speaker and who could offer the type of treatment, advice and assistance that he believed would be of benefit to Mr Hong.
Based on these expert opinions the Tribunal is satisfied that Mr Hong's prospects of rehabilitation are neither entirely fanciful nor forlorn. With the support and encouragement expressed by his family members, and in particular his sister who resides in Queensland, there would seem to be a chance that he could achieve a number of positive objectives, including improving his English language skills and his employment prospects, which would enable him to contribute something to the community.
Other Relevant Factors
The evidence relating to a number of other matters relevant to the issue of deportation, including the degree of hardship which might be suffered by Mr Hong and his immediate family should he be returned to Vietnam, has also been summarised above. Mr Hong's family history has been marked by substantial deprivation and suffering including his separation from his parents in the wake of the Vietnam war and his passage to this country as a young refugee. These events resulted in severe disruption of his education and thrust him into a foreign culture for which he was ill-prepared in such basic areas as language and related skills. Despite the best efforts of his sister and other relatives his adjustment to Australian society proved traumatic and he eventually left home and opted for the life of a street kid with the ultimate consequences that have been described.

The Tribunal was impressed by the evidence given on behalf of Mr Hong by the members of his family who travelled with him to Australia when he was still a minor. These family members expressed strong support for Mr Hong and indicated that they would be prepared to assist him in any way they could should he be allowed to stay in this country. The arrangements made for Mr Hong to reside in Queensland have been described already. Mr Johnson, on behalf of the respondent, contended these arrangements were made on a piecemeal basis and were unrealistic in their expectations of Mr Hong adhering to his promise to refrain from using drugs. The Tribunal rejects these contentions, being satisfied that the plans proposed represent the best efforts of a family that does have a genuine desire to assist in Mr Hong's rehabilitation and which fears for his future well-being should he be returned to his country of birth.
The Tribunal is also satisfied on the evidence before it that Mr Hong and his family would suffer very real hardship should he be deported to Vietnam. While Mr Hong would probably not suffer any direct discrimination or disadvantage as a result of his return as a criminal deportee he would almost certainly be at a severe disadvantage in obtaining employment because of his prior history as a drug addict. The evidence presented on behalf of the respondent by Australian diplomatic officials concerning economic and allied conditions in Vietnam confirmed that it remained a poor country with difficult living conditions for its citizens. No social security network exists to support those unable to find employment or with other disabilities. In the absence of such facilities primary reliance for support for the disadvantaged is placed on the family in its broadest sense. No members of Mr Hong's immediate family, nor close relatives, remain in Vietnam who would be in a position to offer him any support upon his return.
The Tribunal is also satisfied that Mr Hong's prospects of rehabilitation would be minimal should he be returned to Vietnam. It is unlikely that he would either be able to afford or maintain the type of commitment required to complete the traditional treatment program described by Dr Thin in the course of his testimony to the Tribunal. Without any family members to provide immediate support and assistance, and without any realistic employment opportunities, Mr Hong's long-term survival prospects if returned to Vietnam would seem to be very bleak.
CONCLUSION
Perhaps no power given to decision makers under the Act is as extreme or fateful in its consequences than that of deportation. The permanent banishment of a non-citizen affects not only the individual subject to removal but also all of that person's immediate family. It is for this reason that it is a power which should be exercised with great care by the Tribunal. As the Policy Direction indicates, in exercising this power the Tribunal has a responsibility to protect the community from the possibility of further criminal behaviour, and to remove from the community persons whose actions are so abhorrent that they should not be allowed to remain within it.
It was the Australian community which originally proffered to Mr Hong and his family a safe haven from their harrowing experiences in Vietnam. Mr Hong has now been a resident in Australia for the majority of his life, including those critical and formative years between 12 and 18 when he achieved adulthood. As an adult Mr Hong has been convicted of a number of serious drug related offences and both he and his family have suffered significantly as a result of that offending. The Australian community has suffered as well, and it has every right to demand that it should not be further exposed to unacceptable risks of re-offending by Mr Hong. Nonetheless, having regard to all of the evidence before it the Tribunal is satisfied that despite the level of risk of Mr Hong becoming involved in further drug related offences the very severe hardship that would be inflicted upon him should he be returned to Vietnam is sufficient on this occasion to outweigh the factors favouring his deportation. The Tribunal believes that the Australian community has sufficient understanding of and compassion for persons who are afflicted by the scourge of heroin addiction. It is a regrettable but widely known fact that many Australian families are touched by this tragic problem, and are required to cope with children who become entrapped in the heroin trade as a result of their own craving for the drug. There remains a hope that Mr Hong has now reached an age at which he may be able to remove himself from this trap with the assistance of his family and the professional advice and aid which has been identified. None of those possibilities would seem to be available to him in Vietnam. There would also seem to be little general deterrent value in deporting a person like Mr Hong whose criminal activities have been driven to such a significant degree by an addiction to heroin.
In reaching this conclusion the Tribunal wishes to stress to Mr Hong and his family that the patience and tolerance of the Australian community is not boundless and that further re-offending by Mr Hong would result in his almost certain expulsion from the country. The onus is now upon Mr Hong to demonstrate that he does have a capacity to change and that he is willing to avail himself of the support he has been offered. Thus the decision under review is set aside and the matter is remitted back to the Minister with a direction that Mr Hong not be deported.
ATTACHMENT 1

Place and Date of Conviction       Offence and Date Charged Sentence
Minda Children's Court Fairfield 5.1.90    Demand money with menace 5.10.89     12 months good behaviour
Fairfield Local Court Fairfield 16.3.92     Enter enclosed lands 9.1.92         Fined $250
Fairfield Local Court Cabramatta Possess prohibited drug (cannabis) 18.5.92      Fined $300
Fairfield Local Court Wetherill Park         Possess prohibited drug Supply prohibited drug Resist arrest 10.2.93           Fixed term 6 months Fixed term 4 months Fixed term 4 months
Fairfield Local Court Cabramatta Supply prohibited drug Assault police 13.3.93    Fixed term 4 months Fixed term 4 months
Fairfield Local Court Wetherill Park         Supply prohibited drug (heroin) 10.2.94   Fixed term 4 months
Fairfield Local Court Cabramatta Possess prohibited drug 6.3.94     Fixed term 1 month
Liverpool Local Court Cabramatta Possess prohibited drug (2 counts) Supply prohibited drug (2 counts) Goods in custody (2 counts) 9.3.95       12 months imprisonment 12 months imprisonment 6 months imprisonment
Fairfield Local Court 24.3.96         Possess prohibited drug Supply prohibited drug          Fixed term 4 months Fixed term 1 month
Fairfield Local Court Cabramatta Supply prohibited drug 13.3.97     12 months plus 4 months additional reduced on appeal to 9 months
Fairfield Local Court Fairfield 31.8.98     Possess prohibited drug Goods in Custody       Fixed term of 3 months Fixed term of 3 months

I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing
Date of Decision  August 2000
Solicitor for the Applicant              Mr B. Miles
Counsel for the Respondent    Mr G. Johnson
Advocate for the Respondent