HUYNH AND MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 817
•25 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 817
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/3252
General Administrative DIVISION ) Re HOAI HAN HUYNH Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date25 October 2010
PlaceSydney
Decision The decision under review is affirmed.
................[sgd]...............
Ms N Isenberg
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation - character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 - Minister’s Direction No 41 applied - primary considerations - protection of the Australian community – the nature of conduct – risk that conduct may be repeated - evidence of rehabilitation - length of time ordinarily resident in Australia - other considerations - family ties and nature and extent of any relationship with the Australian community – links to the country of origin – risk of re-offending outweighs other considerations - decision under review is affirmed.
Migration Act 1958 (Cth) s 499, s 500, s 501
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
REASONS FOR DECISION
October 2010 Senior Member N Isenberg INTRODUCTION
1. Hoai Han Huynh is a Vietnamese citizen. He arrived in Australia in June 1995 when he was 12 years of age. Since 25 November 1999, he has held a Return (Residence) (Class BB/155) visa by virtue of which he is allowed to remain in Australia, subject to the provisions of the Migration Act 1958 (the Act).
2. Since arriving in Australia, Mr Huynh has committed numerous offences and has spent over 8½ years in gaol. On 28 July 2010, the Minister for Immigration and Citizenship (the Minister) cancelled his visa on the ground that he did not pass the character test under s 501 of the Act. Mr Huynh seeks review of that decision.
RELEVANT LEGISLATION & POLICY
3. By ss 501 (2) of the Act, the Minister may cancel a person’s visa if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
4. A person is taken not to pass the character test if she or he has a substantial criminal record: ss 501(6). A person has a substantial criminal record if she or he has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more: ss 501(7). It is common ground that Mr Huynh does not pass the character test.
5. The discretion in ss 501 (2) must be exercised in accordance with Direction [No. 41] - Visa refusal and cancellation (the Direction), which was made effective from 15 June 2009. The Direction was made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499(1) and (2A). It provides that due consideration should be given to the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens and, in this regard, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens: clauses 5.1(2) and 10.1.
6. By way of general guidance, the Direction requires a decision-maker to consider the nature of any harm the person may cause to the Australian community and the risk of that harm occurring. A wide range of factors must be taken into account, including whether the person began living in Australia as a minor, the length of time she or he has been ordinarily resident in Australia and any relevant international obligations: clause 5.2.
7. To the extent that they are relevant to the particular case, a decision-maker must take into account four primary considerations and seven other considerations.
8. The primary considerations, each of which is relevant in this case, are set out in clause 10(1) of the Direction. They are:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;
(d)any relevant international law obligations…
9. The other considerations are set out in clause 11. They must be taken into account where relevant but, generally, should be given less weight than the primary considerations: clause 11(2). The other considerations relevant in this case are:
(a)family ties, the nature and extent of any relationships:
(i)the extent of disruption to the person’s family, business and other ties to Australia community;
...
(d)any links to the country to which they would be removed. For example, where the person has no familial ties or support in that country, this may be considered in the person’s favour;
(e)hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia:
(i) including whether the immediate family members are able to travel overseas to visit the person; the nature of the relationship between the person and the immediate family members; and whether immediate family members are in some way dependent on the person for support which cannot be obtained elsewhere;
(ii) the ability of the person, together with any accompanying family members, to acquire new language skills and their capacity to obtain support. Where possible, this information should be obtained through interviewing the person and their family members;
...
(g)whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provision of the Act.
THE ISSUE
10. The relevant issue in this case is whether the Tribunal should cancel Mr Huynh’s visa.
11. Mr Huynh does not dispute that he has committed serious offences in Australia. In summary, he submits that there is the strong evidence of his rehabilitation in prison and thereby the likelihood that he will re-offend is reduced. The other matters to be taken into account in the exercise of the discretion under the Direction were said to be generally in his favour.
BACKGROUND
12. Mr Huynh is now 28 years old. He was born in Vietnam in 1982. Mr Huynh’s father was killed shortly after his birth, and his mother left Vietnam in 1984 and ultimately sought a refugee status in Australia, leaving him behind in the care of his grandparents. He was raised by his grandparents until the age of 12, when he arrived in Australia to join his mother. He did not speak English at the time. By 14, according to the Probation and Parole Service, he was associating with delinquent peers and was expelled from school.
13. His criminal offending began when he was 15 years of age, and continued in the following years. In December 1998, at age 16, Mr Huynh was charged with three minor offences. In 1999, he committed the offence of malicious destroy or damage property in March; and the offence of use offensive language and driving without a licence in November. Mr Huynh’s criminal records in 2000, from age 17 to 18, include numerous convictions in the Children’s Court and the Local Court for various offences: he committed the offence of goods in custody in March and was convicted in July; committed the offence of conceal serious indictable offence of another person in May and was convicted in May 2001; committed the offence of supply prohibited drug in June and was convicted in August; committed the offence of unlicensed driver/rider and state false name/address in July and was convicted in August; the offence of supply prohibited drug in October and was convicted in May 2001. In addition, he was charged in November 2000 with shoot with intent to murder and taken into custody where he remained for nearly a year until the charges were dropped in October 2001.
14. On 20 March 2002 he was involved in an armed robbery which resulted in the death of a shopkeeper (‘the first serious offence’). Three days later he was involved in another armed robbery on a grocery store involving a gun (‘the second serious offence’). Within days he was arrested. He pleaded guilty to a charge of manslaughter in respect of the first serious offence and, on 16 July 2004 was sentenced to seven years and seven months imprisonment (to commence on 25 March 2002) with a non-parole period of five years and six months. In respect of the second serious offence, on 10 September 2004 he was convicted of the armed robbery with aggravation and sentenced to nine years imprisonment with a non-parole period of five years and six months, to be served cumulatively, in part, with the first serious offence. As a result, his earliest release date was set at 24 September 2010. His appeal against severity of the sentence was refused.
15. Mr Huynh was released from St Heliers Correctional Centre on 29 September 2010, and was transferred to Villawood Immigration Detention Centre pending the outcome of these proceedings. Had he not been transferred to Villawood Detention Centre on his release, he would have been on parole.
16. He has left Australia once since his arrival: to travel to Vietnam to visit his grandmother for a few weeks in late 1999/early 2000.
PRIMARY CONSIDERATIONS
Protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
17. Factors relevant to assessing the degree of risk to the Australian community of Mr Huynh’s continued stay include the seriousness and nature of his conduct and the risk that it may be repeated. Violent crimes are of special concern: clause 10.1.1(2) of the Direction.
The nature and seriousness of Mr Huynh’s conduct
18. With respect the first serious offence, the Crown case against Mr Huynh was based on his participation in a 'joint criminal enterprise' and he was charged with three other persons. Mr Huynh’s involvement was principally as a 'getaway driver' and it was one of his co-accused who fired the shots which fatally wounded the victim. The sentencing judge remarked at paragraph 18 of his sentencing judgment in R v Huynh [2004] NSWSC 627:
“While [Mr Huynh] was removed form [sic] the violence afforded by his companions… he was prepared to enter a criminal venture, where the risk of injury and indeed the risk of death to innocent people must have been a matter of which he was aware, places his criminal culpability at a high level.”
19. In respect of the second serious offence, the Crown case was again based on joint criminal enterprise and Mr Huynh was convicted of robbery whilst armed with a dangerous weapon - the same Beretta pistol which was used in the first serious offence. Hock J, the sentencing judge, remarked:
"Armed robbery is always a most serious crime, but in this instance the weapon was actually loaded and discharged elevating the objective gravity of the offenders' conduct."
20. Hock J’s sentencing remarks indicate that the victim's 11-years-old son was present at the time of the robbery. I note that the Direction states that crimes against vulnerable people such as children are particularly serious.
21. The judge explicitly rejected the submission that Mr Huynh was less culpable than his co-accused and observed that his involvement in an armed robbery merely three days after the first robbery, which had resulted in the death of the victim, strongly suggested that Mr Huynh was not remorseful for the earlier events.
22. The Direction indicates that the whole of an applicant's criminal record should be given due consideration: clause 10.1.1(3). Mr Huynh’s extensive criminal record began only three years after his arrival in Australia and demonstrates a continuing trend of offending from the age of 16. While his criminal history was regarded by the sentencing judge as 'not vast' when sentenced in respect of the first serious offence, he had been subject to two control orders by the Children's Court on drug offences in 1999 and 2000. In light of this history I consider that Mr Huynh’s most serious offending, that is, his involvement in two armed robberies in 2002, cannot be dismissed as either 'spur of the moment', or 'out of character’.
The risk that the conduct may be repeated
23. Clause 10.1.2(2) of the Direction provides that factors particularly relevant to assessing risk are:
(a)a recent history of convictions, which should be considered as indicating an increased risk of reoffending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight to be given to independent and authoritative sources…; and
(c)evidence that the person has breached judicial orders… and any other relevant undertakings or conditions imposed by the courts.
24. I note the remark made by Mathews J in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51], that “once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending”. It is doubtful though that even the most optimistic of rehabilitation providers to the prison community would suggest that “no risk of re-offending” was an appropriate prognosis except in the rarest of cases. In any event, this is not the test I am to apply and every matter necessarily involves speculation as to what might or might not occur when an offender returns to the community.
25. Mr Huynh has had a relatively long history of offences since arriving in this country in 1995. He has spent 8 and half years of the last 15 years in gaol, and he remains on parole until 24 March 2014.
Drug use
26. Mr Huynh provided four statements/statutory declarations (‘statements’) sent to the Department of Immigration and Citizenship on 27 August 2007, 12 December 2007, 21 February 2008 and 1 September 2009 in support of his application.
27. Contrary to his first statement, Mr Huynh said in his evidence that both serious offences took place, not because of a need to finance a drug habit but to help out his friends. Indeed neither sentencing remark makes reference to the offences being drug related. Mr Huynh did admit in his evidence to having used heroin and cannabis before his incarceration, although he said he was only an occasional user. Mr Huynh said he was “high” when he committed the first and second serious offences. I further note that in a report dated 4 October 2010, Mr Van Son Nguyen, a psychologist, reported that Mr Huynh spoke of his “addiction”.
28. In the first statement he denied using drugs while in gaol. However, as recently as October and November 2008, he was disciplined in prison for failing urine tests. The test results showed morphine in his urine. (He was also previously disciplined for failure to provide a sample, but he said this was because of an inability to urinate on demand). He said that he needed the morphine – which was not prescribed - to provide ‘an energy rush’ in the same way as heroin. He also thought it would counteract side effects of Interferon, a drug which had been prescribed for Hepatitis C which, he said, he had contracted as a result of obtaining tattoos. He said he completed the Interferon course in 2009 so no longer needs the morphine.
Conversion to Christianity
29. Mr Nguyen, psychologist, provided a report dated 4 October 2010 and gave evidence. In his report, he noted a number of positive indicators of Mr Huynh’s rehabilitation that pointed to the prospect that he may achieve full rehabilitation. One of the main factors to which he referred was Mr Huynh’s conversion to Christianity.
30. Mr Huynh first met Father Peter Henry when he was in the Goulburn Correctional Centre in March 2006. In his second and fourth statements and in his evidence, Mr Huynh professed to be a Catholic. (Curiously, he elected to give evidence on affirmation, rather than on oath). Initially he said he was ‘still studying’ the religion, but later said he has not done that since 2006. He has not been baptised, nor taken any other formal steps to conversion. Sometimes he might go to see the chaplain to talk with him and other inmates. He did not give evidence about attending religious services. There are some religious references in his correspondence with Father Henry to his faith.
31. Father Henry was not available to give evidence, but it appears that the contact between him and Mr Huynh, after their initial meeting, was limited to the exchange of eight letters and four Christmas cards. Father Henry also sent him money and gifts.
32. To the extent that Mr Huynh relies upon his conversion to Christianity as a factor relevant to the risk of re-offending, I am doubtful that he has in fact converted to Christianity. Further, I am of the view that a claim of religious conversion alone cannot be given any significant weight in evaluating a prospect of rehabilitation, if unsupported by other substantive evidence of changes in Mr Huynh’s behaviour, conduct and attitude.
Conduct in gaol
33. Mr Huynh’s general conduct in gaol was, at first, according to the report of the Probation and Parole Service dated 6 December 2007, unacceptable. He was regarded as a high profile gang member. It is described in the report that other Asian inmates were bound to obey his orders which involved physical assaults on other inmates. He had periods of segregation as a result of his behaviour and threat to security. The report also notes that since 2002 he had committed fifteen offences in custody including five failed urine tests. After successfully undertaking the Security Threat Group program and other programs, he ultimately progressed through the classification system to a minimum security risk classification level.
34. The most recent report from the Probation and Parole Service dated 13 April 2010 suggests that Mr Huynh’s behaviour has improved of late. Yet it made a note of his history of involvements in ‘violence, intimidation and aggression towards other inmates.'
35. As recently as March 2009 he was disciplined for possessing a shiv - a prohibited sharpened instrument - and for assaulting an inmate. He had said at the time that he needed the shiv - which he has said was a chopstick - to protect himself and that he had assaulted the other inmate in self-defence. On one occasion in October and another in November 2008, he was disciplined for failing prescribed urine test due to morphine use.
36. I observe that from the report of Mr Nguyen, Mr Huynh explained the morphine use, possession of prohibited weapon and the assault on another inmate as being ‘due to the necessity for self-defences and medical reasons’. This was broadly consistent with his evidence before me.
37. As at 6 December 2007, Mr Huynh had participated in a number of courses while in gaol, including Spiritual Awareness, Drug Education Program, AOD Harm Minimisation, OHS General Induction for Construction work, and Anger Management. The Respondent noted that Mr Huynh had not been accepted for the Violent Offenders Therapeutic Program (VOTP). The most recent evidence from the Department of Corrective Services was Ms Constable's report dated 20 September 2010, which is based on the Department's case notes. Ms Constable, who is a welfare officer, who, Mr Huynh said, had only interviewed him for the purpose of the report, records that had Mr Huynh been accepted for the course he would have had to be transferred to a maximum security correction centre, which, having regard to his progress to a minimum security location might cause him to be ‘disinterested’. Ms Constable wrote that, in fact, he had completed all the programs VOTP staff had recommended bar one.
38. I had little evidence before me about the nature of the VOTP program other than that the program is conducted over a long period of time, is not available to all offenders, and is conducted in maximum security facilities. It is intensive in its training, according to Mr Huynh, about how to express feelings and how to deal with issues such as remorse and the inappropriateness of violence. On the basis of the available evidence, I agree with the submission by Mr Huyn’s counsel that the VOTP is not necessarily the ‘be all and end all’ of prison rehabilitation programs. On the basis of the evidence before me, I am unable to draw any conclusion from the fact that Mr Huynh either elected not to, or was ineligible for, the course.
39. I note that the sentencing judges in 2004 considered Mr Huynh to have reasonable prospects for rehabilitation, but the opinion of Hock J, in particular, was premised upon Mr Huynh remaining drug free upon release, and participating in courses whilst in gaol. The evidence suggests that the training he had received through participating in courses whilst in gaol did not prevent him from resorting to violence on at least one occasion. Only a short time since completing the ‘Getting Smart Program’ (GSP) – a six-week course conducted for a few hours a day, twice a week – in December 2008 he was found, in March 2009, to have assaulted another inmate and had possession of a shiv. I note that the GSP was not the first anger management course he had attended.
40. Ms Constable observed that "although there is evidence of Mr Huynh initially having some difficulties in settling into gaol routine upon his incarceration, his case notes indicate that as he has progressed further into his sentence his attitude towards staff, inmates and life in general within the correctional system became noticeably more positive with some officers reporting remarkable changes to his attitude. At one stage Mr Huynh also showed an interest in becoming a Mentor for other offenders given his ability to 'turn his own life around'."
41. Mr Nguyen said that during the two hour interview conducted on 1 October 2010, Mr Huynh showed signs of remorse about the death for which he was partly responsible, although he ‘did not express his regrets in words’. One of the first things he would do on release was to apologise to the victim’s family. Mr Nguyen thought there were signs of psychological abnormality. Nevertheless, after reading the sentencing reports, the Probationary and Parole Service reports and after interviewing the family, Mr Nguyen came to the view that Mr Huynh had reasonable prospects of rehabilitation.
42. Mr Huynh’s professed motivation in undertaking the VOTP program and converting to Christianity must be viewed in light of his knowledge regarding his risk of deportation. On 22 June 2007 Mr Huynh was advised that he was at risk of having his visa cancelled. In December 2007 he professed to have found ‘happiness and inner peace’ through Christianity. At about the same time he was being assessed for entry into the VOTP. In February 2008 he wrote to the Department that he thought the VOTP was for people who ‘still needed more help to change’ and he hoped the Corrective Services would make an assessment that he no longer needed it.
43. Before his imprisonment in 2002, Mr Huynh did not have a promising start in society: he had been expelled from high school in Year 9 and spent most of his time, when not in custody, unemployed, until he was first convicted of a criminal offence at age 15. He is virtually untested as an adult in the community, and his record in prison is not indicative, to me, of a person who has turned a corner in his life.
44. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198, the Full Federal Court held that a real risk of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk. I find that the risk of recidivism in Mr Huynh’s case is not ‘far-fetched or fanciful’. I do not accept that Mr Huynh has, during his period in prison, rehabilitated to an extent that it can now be said that it is unlikely he will re-offend. I find that the likelihood of Mr Huynh re-offending is reasonably high, and I consider it a strong factor in considering the exercise of the discretion.
Whether Mr Huynh was a minor when he began living in Australia
45. The Direction indicates that more risk may be acceptable where the person has spent formative years here and become part of the Australian community. Mr Huynh was 12 years old when he first entered Australia and has spent most of his formative years here. He is now almost 28 years old and has spent most of his life in Australia, albeit 8½ of the last 15 years in prison. This primary consideration therefore weighs in Mr Huynh’s favour.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
46. Mr Huynh committed his first offence in 1998, three years after arriving in Australia at age 12. His next offence was several months later, and within a short period of time he was regularly appearing before the criminal courts. By May 1999, at age 16, he was supplying drugs. He committed two serious offences in March 2002, about seven years after he arrived in Australia. Because of the relatively short period of time that Mr Huynh was resident in Australia before committing his first offence, I give this consideration little weight in his favour.
International law obligations
47. The only submission was in respect of Australia's obligations under the Refugees Convention and to the right to freedom of religious belief under Article 18 of the International Covenant on Civil and Political Rights. Mr Huynh submitted that in Vietnam it is ‘not at all easy’ to be an adherent to ‘evangelical Christianity’ (as Mr Huynh’s religious faith was initially described by his counsel in his written submissions).
48. I was referred to the United State’s State Department report that during 2009 police broke meetings of worshippers of the Inter-Evangelistic Movement, refused to register IEM meeting points and pressured followers to abandon their faith. One student of a lEM-affiliated bible school in Ho Chi Minh City was detained for "illegal evangelizing" and fined. In April 2009 it was reported that a lay pastor had been beaten to death due to his Protestant evangelizing: United States Department of State, Bureau of Democracy, Human Rights, and Labor, International Religious Freedom Report, Vietnam (October 26, 2009).
49. The Respondent directed my attention to page two of the report which notes that Government restrictions on the gathering of Catholic and Protestant groups, as well as on the assignment of new clergy, had in fact decreased. Although it was reported that there were some 'isolated incidents’ of Government interference towards Christians, the report noted that there were few instances of societal violence based on religious affiliation, belief, or practice during the reporting period. The Respondent also noted that two Departmental International Obligations and Humanitarian Concerns Assessments have concluded that Mr Huynh would not face persecution or mistreatment upon return to Vietnam, including for reason of his religion.
50. Quite apart from my concerns as to whether Mr Huynh has in fact converted to Christianity, I do not accept that he could not practise that faith should he return to Vietnam.
OTHER CONSIDERATIONS
51. These must be taken into if relevant but generally should be given less weight than primary considerations: clause 11(1) and (2) of the Direction.
Family ties, the nature and extent of any relationships
52. Mr Huynh's only close family resides in Australia: his mother, and his 17 year old half-sister Michelle Lam. Both were said to have visited him in gaol. There was evidence of a birthday card from Mr Huynh to Ms Lam dated 4 November 2005. Mr Huynh said they had spoken on the telephone. Mr Nguyen had interviewed Mr Huynh’s mother, and reported that she said she wanted a ‘normal family’. He said Ms Lam had developed a closer relationship with Mr Huynh ‘in recent years having learnt about ‘his tragic predicament’. Neither Mr Huynh’s mother (who was present at the hearing) nor his half-sister provided a statement or gave evidence.
Links to the country to which Mr Huynh would be removed
53. Mr Huynh now has no close ties to Vietnam other than his elderly grandmother. He does not know her whereabouts, although he said his mother knows where she lives.
54. Mr Huynh said in his evidence that when he was in Vietnam in 1999/2000 for a month he ‘couldn’t handle’ the weather and he found the accents difficult, which led to some communication problems. He agreed he could still speak Vietnamese and converses with his mother and friends in both Vietnamese and English.
55. Mr Nguyen believed that Mr Huynh would be ‘scorned’ in Vietnam because of his criminal record. Mr Nguyen said that jobs were obtained through bribery and family contacts. He did not think any of the vocational skills learnt by Mr Huynh in prison would assist in getting a job in Vietnam. Mr Nguyen observed that Mr Huynh’s "plan for a new life outside of prison to become a normal person again would be smashed to pieces as he has no financial, social or emotional grounds to stand on, not even a roof over his head, in Vietnam".
56. I accept that after 15 years in Australia, Mr Huynh has very limited links to Vietnam and it would undoubtedly be difficult for him to re-establish himself there.
Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia
57. I accept the evidence provided in respect of Mr Huynh’s mother, that she is psychologically and physically scarred from the tragic events which occurred in Vietnam, including the loss of her husband, who was killed by the Vietnamese Communist Army in her presence in 1982, the death of her eldest child and the suicide of her father. She is currently on a disability support pension and is divorced. Her only relatives in Australia are Mr Huynh and Ms Lam. Mr Nguyen and Mr Sananikone, Community Support Worker from New Horizons Enterprise Limited, were of the view that there are strong compassionate grounds for Mr Huynh not to be removed from Australia for his mother’s sake and, to a lesser extent, for the sake of Mr Huynh’s half-sister.
58. Mr Sananikone wrote that having Mr Huynh live with his mother would assist her with the burden of the housework, as well as helping out financially when he had gained employment. In his evidence Mr Huynh said he would like to take care of his mother and she requires full time care and that was a role he wanted to fulfill, as well as finding full-time employment. He thought his mother and half-sister would need a ‘man around the house’ because of the crime in the area. Mr Nguyen formed the view that Mr Huynh’s mother needed professional care and doubted Mr Huynh could provide care of the kind she requires.
59. Mr Huynh’s mother has not been dependent on him for several years because of his incarceration. However I accept that, having regard to her poor health and limited finances, it is uncertain whether Mr Huynh’s mother will see him again if he is returned to Vietnam. I accept that she would probably benefit from having her son remain in Australia.
Whether the person has been formally advised in the past by an officer of the Department of Immigration about conduct that brought him within the character provision
60. Mr Huynh has never been advised that his conduct might bring him within the character provisions. Indeed, he claims that he always thought he was an Australian citizen.
CONCLUSION
61. Despite evidence that suggests Mr Huynh may have been making efforts to change his behaviour, I am not satisfied that he will not revert to committing serious and violent offences. In my view, there is an unacceptable risk of harm to the Australian community from his conduct in the future. I am not satisfied that any other primary considerations contained in the Direction outweigh that unacceptable risk of harm.
62. I accept that Mr Huynh’s mother and half-sister may wish to support him and that his mother, in particular, will be distressed at his removal. I acknowledge that he has few, if any, meaningful ties in Vietnam and that it will be difficult for him to reestablish himself there. It is quite possible that his rehabilitation will be set back if he is deported. However, I am satisfied that the degree of unacceptable risk that he poses to the Australian community far outweighs all other considerations.
63. I affirm the decision under review.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: .............[sgd]....................................
AssociateDate of Hearing 14 October 2010
Date of Decision 25 October 2010
Counsel for the Applicant Mr N Poynder
Solicitor for the Applicant Ms N Y Tran, MY.T.Nguyen Solicitors
Solicitor for the Respondent: Mr G Johnson, DLA Phillips Fox