Huynh and Minister for Immigration and Multicultural Affairs
[2001] AATA 31
•22 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 31
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 1999/1678
) No. 1997/1366
GENERAL ADMINISTRATIVE DIVISION )
Re PHAT TAN HUYNH
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date22 January 2001
PlaceSydney
Decision The Tribunal does not consider that it has jurisdiction to entertain an application for reinstatement or to grant an extension of time. However, even if the Tribunal does have jurisdiction to grant an application for an extension of time, it does not exercise its discretion in favour of the Applicant. Accordingly both applications fail.
.............[sgd J Block]....................
Deputy President
CATCHWORDS
IMMIGRATION – deportation order - application for reinstatement – application for extension of time to submit further application for review where original application for review dismissed – jurisdiction of the tribunal under the Administrative Appeals Tribunal Act 1975 in respect of both reinstatement and extension of time applications – effect of 1993 amendments to the Administrative Appeals Tribunal Act 1975 – whether assuming jurisdiction to grant another extension of time, the Tribunal should exercise its discretion in favour of the applicant – consideration of Hunter Valley principles
Administrative Appeals Tribunal Act 1975 – section 29, 42A
Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916
Re Pham and Minister for Immigration and Multicultural Affairs [2000] AATA 1159
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
22 January 2001 Deputy President J Block
(a) A deportation order was made against the Applicant on 12 September 1997. The Applicant sought the review of that decision pursuant to an application apparently dated 17 September 1997 and received in the Tribunal on 8 October 1997. The grounds specified in that application were as follows :
Because I have no family whatsoever in Vietnam. My family being my de-facto and son and daughter whom are both under ten years old and need my assistance.
(b) The Respondent, in a letter to the Tribunal dated 24 May 2000, included a chronological summary of events ("the Chronology") in respect of the application referred to in subparagraph 1(a) reading as follows:
13 Oct 1997The applications is listed for a telephone conference on 2 December 1997 at 11.00am
24 Nov 1997 The Applicant advises that he has an appointment with the Legal Aid Office on 3 December 1997.
The telephone conference on 2 December 1997 is vacated and re-listed for 27 January 1998 at 12.00 noon.
26 Nov 1997 The Applicant is released from custody.
27 Jan 1997AAT advises that they are unable to contact the Applicant. The Applicant had not responded to letters sent to his address for service. Telephone conference therefore did not proceed. AAT requested that DIMA ascertain whether the Applicant has moved address.
30 Jan 1998The matter is re-listed for a telephone conference on 5 March 1998 at 9.30am.
10 Feb 1998DIMA advises AAT that they have been advised by their Criminal Deportation Section of the Applicant's address.
5 Mar 1998AAT lists the matter for a telephone conference on 22 April 1998 at 9.30am. This telephone conference was vacated due to lack of time to contact the Applicant.
8 Apr 1998DIMA advises AAT by fax that the Criminal Deportation Section of the Department has advised that Mr Huynh had approached them indicating that he intends to travel to Vietnam for six months on 21 April 1998. DIMA requested that the matter be listed for a conference prior to the Applicant's departure, so that any implications arising from his departure may be discussed with him.
The matter is listed for a telephone conference at the Respondent's request and scheduled for 17 April 1998.
17 Apr 1998The telephone conference was attended by Claire Bird (Conference Registrar), Mr Huynh and by Jackie Davies, representing DIMA. The AAT advised Mr Huynh that his matter would be adjourned for six months while he was overseas.
Departmental checks of Mr Huynh's movement records revealed that he did not depart Australia as anticipated and DIMA requested the AAT to re-list the matter.
19 Jun 1998AAT listed the matter for a telephone conference on 28 October 1998 at 9.30am.
2 Sept 1998AAT listed the matter for a telephone conference for 4 November 1998 at 11.30am.
28 Oct 1998The telephone conference did not proceed as the Applicant did not attend.
4 Nov 1998The Applicant failed to attend the telephone conference. DIMA requested that the matter be struck out for failure if the Applicant to appear. Melanie Tully (Associate to DP Chappell) of the AAT advised that she would write to the Applicant to give the opportunity to explain his non-attendance. AAT sent a letter to the Applicant at his new address for service. The AAT received no response.
23 Nov 1998Dr Chappell DP dismissed the application without proceeding to review decision.
12 Apr 2000 Hearing of application for dismissal. It was determined that the Applicant should file an application for extension of time.
7 May 2000 The Applicant fills out an application for extension of time.
10 May 2000 The application for extension of time is lodged with the AAT.
(a) The Applicant was self-represented, and assisted by an interpreter in the Vietnamese language. Mr Nathan Cureton of Blake Dawson Waldron, solicitors, appeared for the Respondent. I note in this context that the Applicant has been in Australia since 1983 and that, although his English is neither fluent nor grammatical, it is by no means non-existent. When Ms Richards gave evidence (by telephone) he informed the interpreter that he did not want it interpreted, because (so he said) he understood it. The Tribunal was anxious to ensure that this was indeed so and pressed him for his assurance that he did not need interpretation; he said that he understood 70% of it. It is relevant to note that Ms Richards's evidence amplified her written statement (Exhibit R1) which had been furnished to the Applicant.
(b) This matter came before me originally in a hearing set down for hearing on 10 October 2000. At that hearing the Applicant sought a postponement; he said that he wished to obtain legal representation; he said also that he thought that Mr Cureton (who appeared for the Respondent at that hearing) was his solicitor. Although at that time I did not believe that the Applicant thought that the Respondent's solicitor was his representative (bearing in mind that he had had no such contact with him), I thought it desirable (given that he was a self-represented Applicant) to postpone the matter in order to enable him to obtain legal representation. In granting a postponement I warned the Applicant that further postponements on these grounds would be unlikely, and so he should make the necessary arrangements to enable him to be represented at the adjourned hearing.
(c) Shortly before the hearing commenced, my associate received a telephone call from Ms Victoria Havryliv, asking that I arrange for her to be telephoned from the hearing. Through the Tribunal telephone link, and at the commencement of the hearing, Ms Havryliv was contacted as requested by her. She said that she was an academic at Macquarie University and that she gave advice to persons in need at the Silverwater Metropolitan Remand Reception Centre ("MRRC"). She asked whether the matter could be postponed to enable the Applicant to receive advice. I advised her that the matter had previously been postponed; I also invited her to come to the hearing in order to assist the Applicant, and would have agreed to adjourn the hearing to enable her to come to the hearing. She declined to do so; she said that she had not made contact in any official capacity.
(d) The Applicant then said that he wanted a postponement because he had received listing notices only a short while previously; he produced notices by the Tribunal both dated 11 January 2001; one relates to application number N1997/1366 and refers to "Hearing of Reinstatement Application", whereas the other relates to application number N1999/1678 and refers to "Application for Extension of Time". The Applicant said that he had not previously been made aware of the fact that the hearing would take place on 16 January 2001. That that statement was not truthful is evidenced by the fact that a listing notice had previously been sent to the Applicant (c/- MRRC, Private Bag 144, Silverwater), on 13 October 2000, (shortly after the first hearing date) advising him of the fact that the matter would be heard on 16 January 2001. The reasons why this hearing related to both a reinstatement application and an application for an extension of time are set out in paragraph 3 below.
(e) The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), together with a number of exhibits, as follows :
Exhibit R1 is a statement dated 6 September 2000 by Jackqueline Richards who was the Applicant's former de facto partner; that statement reads as follows :
1. My name is Jackqueline (Jacky) Richards of an address known to Nathan Cureton of Blake Dawson Waldron Solicitors. My name before I was married was Jackqueline Lawlis.
2. In about 1986 I met the application Phat Tan Huynh. Approximately 9 months later we commenced a de facto relationship. There were two children born to this relationship, Sahra, who was born on 29 June 1987 and Adam, who was born on 9 November 1991.
3. Some time in about 1993 my relationship with the application ended while the applicant was in prison.
4. In July of 1996 I married my husband David Richards. My husband acts as a father to Adam and Sahra.
5. In the winter of 1999, an arrangement was made for the applicant to see Sahra at my mother's house. The applicant before this visit had not seen Sahra or Adam since we separated in 1992. The applicant's mother was visiting from Vietnam at the time and was present when the meeting took place.
6. The applicant has not seen either of his children since that time and has not contacted me or my mother to make arrangements to see them. The children have not visited him in prison. At the present time the applicant does not see myself, Sahra or Adam. The applicant provides no financial support for Sahra or Adam.
Exhibit R2 is a lengthy statement as to the Applicant's criminal history; I do not think it is necessary to set it out in full; it reflects a large number of convictions (and sentences) for offences, many of them serious, commencing in February 1988 with stealing whilst on board an aircraft and possession of a prohibited implement, through to September 1998, at which time he was convicted of offences relating to the supply of drugs. The number of convictions recorded in aggregate is 70. Many of the convictions relate to drugs; others in turn related to robbery, stealing and breaking and entering. The 70 convictions occurred regularly over that period; some of the convictions resulted in gaol sentences. The conviction which is of particular relevance to the deportation order is that which occurred on 20 June 1989 when the Applicant was sentenced to a term of two years and six months for "break, enter and steal".
Exhibit R3 is a transcript of the New South Wales Magistrate Court (Fairfield Local Court) on 27 February 1997, when the Applicant was convicted of offences involving motor vehicles. His worship said, at page 4 and 5:
HIS WORSHIP . . . The defendant pleads guilty to one country of attempting to steal a motor vehicle, one count of having in his possession an implement capable of being used to enter a conveyance and to one count of having been convicted of an indictable offence, being found in a public place with intent to commit an indictable offence. All the offences were committed on 3 February 1997 when the defendant was proceeding to various cars in Fairfield, obviously with the intention of stealing them and when he was finally apprehended by police, having been observed by a number of people to be acting suspiciously in relation to cars, he was found to be in possession of two screw drivers and on those facts, clearly, each of the charges have been made out and the plea should be accepted.
The defendant has a lengthy criminal record for offences involving dishonesty. He has served lengthy custodial sentences in relation to serious dishonesty offences, some of those offences involved violence as well. His last entries are convictions at this court in October of 1995 for offences involving dishonesty again, involving possession of implements, larceny and taking and driving a conveyance. The defendant has pleaded guilty but that is all that can be said for him. The maximum penalties are a fine of $5,000 or two years imprisonment or both with respect to the attempt steal motor vehicle. The charge of possession of the implements $10,000 or two years imprisonment or both and the remaining count is $400 or six months imprisonment.
The defendant's record really is horrendous and there is not alternative in this case, in my view, but to impose full custodial sentences. The orders I make are in respect of each matter, that the defendant be convicted. In respect of the charge of attempting to steal the motor vehicle and also possession of the implements the defendant is sentenced to a minimum term of nine months commencing today's date and expiring on 26 November 1997. An additional term of three months is set for each of those matters during which the defendant may be released on parole commencing on 27 November and expiring on 26 February 1998.
In respect of the charge of – the remaining charge, the defendant is imprisoned to a fixed term of six months commencing todays date and expiring on 26 August 1997. I also make an order that the implements be forfeited to the Crown. As a result of these orders the defendant is eligible to be released on 27 November 1997.
Exhibit R4 is a document entitled Bench Copy of the Charge Sheet in respect of convictions of the Applicant for drug offences (involving heroin) on 8 September 1998.
Exhibit R5 is the General Direction under section 499 of the Migration Act 1958 in respect of Australia's criminal deportation policy.
Exhibit A1 consists of two photographs of the Applicant and his two children taken in 1999.
Exhibit A2 is a payroll document indicating that the Applicant was employed by Leighton Contractors Pty Limited in September 1999
(f) Because the Applicant was representing himself, I invited the Respondent to present his case first. Mr Cureton then informed the Tribunal and the Applicant of the case against him, and inter alia submitted that the Tribunal does not have jurisdiction, having regard to my decisions in Re Truong and Minister for Immigration and Multicultural Affairs [2000] AATA 916 and Re Pham and Minister for Immigration and Multicultural Affairs [2000] AATA 1159. Ms Richards was then called to give evidence by telephone; I will refer to that evidence later in these Reasons.
(a) As appears from the Chronology, the Applicant's original application was dismissed by Deputy President Chappell on 23 November 1998 pursuant to section 42A(2) of the AAT Act. Subsequently, and in October 1999, the Applicant submitted a further (and second) application for review of the deportation order. On this occasion, the application was not in fact dated; the Applicant's reasons as specified in that second application were as follows :
Two charges more than ten years ago. 1998 ? Sentenced minor charges since. Two young children. Was working Superdome Homebush, when put into custody.
(b) The Applicant then, by application dated 16 November 1999, submitted yet a further (and third) application for review of the deportation order. On this occasion, he specified his reasons as follows:
I have elder my sister, my children my nephews and nieces who are born in Australia and no relatives in Vietnam.
(c) The Applicant in addition made an application for an extension of time; that application was dated 7 May 2000. The Applicant's reasons as specified in that application were as follows:
I having two kids And I have a proper job I been in this country for 18 years already if you send me back there like you are giving me a death execution. So please Reconsidering my request and my kids
It is relevant to note that the application for an extension of time was made in response to a suggestion by the Tribunal; I refer in this context to a letter to the Applicant and also the Department of Immigration and Multicultural Affairs dated 12 April 2000. It would appear that the registry staff of this Tribunal were under the impression that when a review application is dismissed, a further application for review may be competent, and that therefore if made out of time, the grant of an extension of time is (where discretion is exercised in favour of the Applicant) is competent.
(d) It is not clear to me whether the extension of time application related to the second application or the third application; I propose to assume that it related to each or either of them. Similarly, the Tribunal listed the hearing on 16 January 2001 also as a reinstatement application and thus to the original (dismissed) application.
After the matter first came before me (on 10 October 2000), I have furnished decisions in two similar fact situation cases; those being Re Truong and Re Pham (referred to earlier in these Reasons). Of these two decisions, and although both are in point, the former of the two is most relevant; in Re Truong also there were two applications; those being both an application for reinstatement and an application for an extension of time. My decision in Re Truong read as follows:
The Tribunal does not consider that it has jurisdiction to entertain an application for reinstatement or to grant an extension of time. However, even if the Tribunal does have jurisdiction to grant an application for an extension of time, it does not exercise its discretion in favour of the Applicant. Accordingly both applications fail.
As set out previously in these Reasons the Respondent contends that, in line with my decisions in Re Truong and Re Pham, I do not have jurisdiction to hear a second (or for that matter, third) application for review of the deportation order, or an application for an extension of time. I refer in this context to paragraphs 9 and 10 of my decision in Re Truong and paragraph 8 of my decision in Re Pham, which incorporates paragraphs 9 and 10 of my decision in Re Truong. I do not think it necessary to repeat those reasons yet again; suffice it to say that for the reasons stated, and having regard to amendments to the AAT Act in 1993, it is my view that an application for review, once dismissed, is concluded, and so that a second (and for that matter third) application is not competent; furthermore an application to reinstate the original (dismissed) application will not be valid unless it is made within 28 days of the dismissal.
I propose, nevertheless, just as I did in each of Re Truong and Re Pham to consider whether, assuming I am wrong, and having regard to the non-exhaustive list of guidelines referred to in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344, it would be proper for me to exercise my discretion as regards an extension of time in favour of the Applicant.
Ms Richards gave evidence (as set out previously) in support of her written statement (Exhibit R1). After confirming it, she said that after she and the Applicant parted in 1992, she has received no financial support whatsoever for the children from the Applicant. The Applicant has not, except on two occasions, sought contact with the children. In 1999, there was a brief meeting on the occasion of a visit by the Applicant's mother (the children's grandmother) to Australia from Vietnam; it was at that brief meeting that the photographs (Exhibit A1) were taken. Shortly before Christmas in 2000, Ms Richards was asked to bring the children to visit the Applicant at Silverwater but refused to do so, considering that to take the children into such an environment would be undesirable. (It was suggested by the Respondent, that that meeting was invited by the Applicant, after Ms Richard's statement (Exhibit R1) had been furnished, in order to bolster his case). Ms Richards said also that her husband, Mr Richards, is in effect the father of the children and he supports them, and that the children's relationship with him and their half-sibling born of her marriage to Mr Richards is a good one. She said that the Applicant has sought or desired very little contact with the children, that he plays no part in their life and that his return to Vietnam would not be a source of hardship to the children. The Applicant did not ask any questions of Ms Richards.
The Applicant was then invited to make a statement or to give evidence. It was made clear to him that sworn (or in his case affirmed) evidence would be of more value, even though he would then have to answer questions by Mr Cureton. After some prompting, he did give affirmed evidence. It was lengthy, often rambling and contradictory. In this regard:
(a) The Applicant's evidence can be characterised in broad terms as a mixture of denials of evidence by Ms Richards, statements by him, often in conflict with written evidence before the Tribunal, and frequently repeated admissions that he had behaved badly, but would, if only given the chance, "turn over a new leaf" in the future and reform his ways.
(b) Questions by Mr Cureton (and by the Tribunal) were often responded to by lengthy and rambling replies, sometimes not related to the question. Mr Cureton's task was not easy; he plainly felt that he should put aspects of the Respondent's case to the Applicant, even though replies were so often unhelpful, or in some cases, not in reality replies at all.
(c) The Applicant had said in one of his applications that he had no family in Vietnam. In fact he does, and being his parents and seven siblings; he also said that he did not know whether his father is still alive. He said that he had not seen his family for twenty years and would not know them; this is clearly untruthful; he travelled to Vietnam twice in 1996, for periods of one month and six months respectively (Tpg 155), and must have seen his family. He also, as the Chronology demonstrates, intended to travel to Vietnam for six months at a later time, although in the result did not do so. His statement that to return to Vietnam would result in a "death sentence" to him was equally untenable. I refer in this context to his original application in 1997, where he claimed that he had a de facto, even though he had parted from her many years prior to that year.
(d) The Applicant's statement as regards drugs were entirely contradictory. He denied that he ever sold drugs, and notwithstanding convictions for dealing in drugs. He said at an early stage that he is now free of drugs while on another occasion said that he is trying to rid himself of the habit, and that this was difficult in confined surroundings; he referred (vaguely) to commencing a methadone programme. He said also that some of his convictions were drug related, in that he was stealing or robbing in order to obtain money to buy drugs and support his habit.
(e) The Applicant spoke on a number of occasions of his devotion to his children, and said he had on occasions seen them from afar. As to support he said the he had on occasions bought items for them but did not specify what those purchases were.
(f) The Applicant in his various applications had little regard to the truth. His fear of adverse consequences in a return to Vietnam was contradicted by his trips to Vietnam; he denied that he had family in Vietnam, and he relied heavily on the existence of his two children whom he has never supported and with whom he has no contact. His claim that he had a de facto in 1997 was false; so too for that matter was his claim (and see paragraph 3(a) of these Reasons) that he had "two charges more than ten years ago".
(g) The evidence of Ms Richards was entirely credit worthy; the evidence of the Applicant was not. His behaviour at the commencement of the hearing demonstrated just how unscrupulous he can be. He pretended that had only just received notice of the hearing; he then said that he was so upset that he could not make a case and at the same time jumbled some papers. The Applicant came to Australia in 1983 under a refugee programme; for a very long period he has, when not in gaol, engaged in crime in various parts of the country. His protestations (repeatedly made) that if only given another chance he will reform, cannot be accorded any credibility. It must be remembered that some years previously he had been threatened with deportation. In general terms the Applicant in his applications generally based them on statements and claims which were clearly (and as he well knew) untrue.The conduct of this hearing was not at all easy. The Applicant does have some English but is not fluent. He said at the outset the he thought that the Tribunal was like other authorities, against him. As regards his crimes, he said that he had reached an age when he had to put his life in order, and if only given another chance, would do so. The Applicant has in fact had chances in the past; he was (as set out previously) threatened with deportation some years prior to the actual deportation order. He nevertheless offended again thereafter and repeatedly; indeed he did so even after the deportation order was served on him (in 1997) and again in 1998 after he had been released from gaol in respect of the 1997 convictions. Although he is a welder, he has in his years in Australia worked very little, and has drawn social security for lengthy periods.
The magistrate in 1997 characterised his record as "horrendous" (Exhibit R3) and that description was in my view altogether apt; in addition he was convicted again thereafter. It may be wondered whether but for his detention he would have remained trouble-free after 1998; the risk of recidivism (as his record demonstrates) is only too real.
There may be some hardship to the Applicant if he is deported to Vietnam; however it must be remembered that he is a welder, speaks the language and has most of his family there. (I find it hard to accept that he would not know if his father is dead; he has close ties with one older sister who lives in Australia, and according to the Applicant she also does not know if their father is alive). I cannot accept that in the circumstances his deportation would be a hardship to his children; a contrary view is entirely tenable.
This case on the merits is, if anything, worse than those in Re Truong and Re Pham, if only because of the number, seriousness and frequency of the Applicant's offences. It is fair to say that he is a danger to Australia, and his promises of reform cannot at this time be accorded any credibility. On the merits then an application for review would have little or no prospect of success.
The Applicant has furnished no reason for delay; it can also be said that he has rested on his rights. He tends to take legal steps only when absolutely without any alternative and at the last possible moment.
Although the question of expense to Australia is a factor, I do not think that prejudice to the Respondent is a material factor. As to applicants in a like position, a message to the effect that conduct like this will not be tolerated, is desirable. The Applicant came here as a refugee and has for many years been repeatedly committing crimes.
I might mention in conclusion that I would have preferred that this matter be heard on the basis that the Applicant were represented. Self-representation in these circumstances is never desirable. It is for this reason that a postponement on 10 October 2000 was granted, and even though it was not possible to accept that the Applicant believed that Mr Cureton was representing him. That claim was (as was his claim that he had only recently received notice of the hearing) a delaying tactic.
In summary, I have no jurisdiction to entertain either application. But even if I did have jurisdiction to hear an extension of time application in respect of the second or the third application (or both), this is not a case where it would be proper for me to exercise my discretion in favour of the Applicant.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.
Signed: ...........[sgd Marcus Ryan].................................
AssociateDate of Hearing 16 January 2001
Date of Decision 22 January 2001
Applicant self-represented
Solicitor for the Respondent Mr Nathan Cureton
C/- Blake Dawson Waldron
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