Khong and Minister for Immigration and Citizenship
[2011] AATA 367
•31 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 367
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1198
General Administrative DIVISION ) Re Chien Van Khong Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date31 May 2011
PlaceSydney
Decision The decision under review is set aside and in substitution the Tribunal decides that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Khong’s favour so that his visa is not cancelled.
.................[sgd].................................
Senior Member Jill Toohey
CATCHWORDS
IMMIGRATION – visa cancellation – character test – 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 – history of serious drug offences – risk that conduct could be repeated – best interests of applicant’s 14-year old son – applicant’s wife needing care for serious mental illness – applicant due for release on supervised parole – evidence of psychologist that risk of repeating conduct low if applicant undertakes counselling – balance of considerations just favouring exercise of discretion not to cancel visa – decision under review set aside
Migration Act 1958 (Cth) ss 499, 501
Crimes (Sentencing Procedure) Act1999(NSW) s 44
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
REASONS FOR DECISION
31 May 2011 Senior Member Toohey
Background
1. Chien Van Khong was born in Vietnam. In 1988, he and his de facto wife, Lam Thi Pham, left Vietnam for South Korea where they lived in a refugee camp for three years. They were granted refugee status by New Zealand and, in 1991, moved there with their two-year old daughter. In 1995, Mr Khong was granted New Zealand citizenship.
2. Mr Khong’s relationship with Ms Pham has been difficult for many years and they have separated and reconciled several times. On one such occasion, in early 1996, Ms Pham left New Zealand and came to Australia with their daughter, and their son who was born in New Zealand. Mr Khong followed several months later. He was 28 at the time. The couple reconciled in Melbourne but separated not long after when Ms Pham took the children to Sydney. Mr Khong followed some time later and they again reconciled. A third child, a son, was born in Sydney.
3. Mr Khong’s children are now 22, 19 and 14 years old. Ms Pham and the children are now Australian citizens.
4. Mr Khong has been convicted of a number of serious drug offences in Australia and has spent six of his 15 years in Australia in gaol. He is currently serving a total term of five years and six months. He will be eligible for release on supervised parole on 11 June 2011.
5. Mr Khong arrived in Australia on a Special Category Visa which entitled him to remain indefinitely, subject to the provisions of the Migration Act 1958 (the Act). On 23 March 2011, a delegate of the Minister for Immigration and Citizenship (the Minister) notified Mr Khong that his visa had been cancelled because of his substantial criminal record. Mr Khong seeks review of that decision.
6. Mr Khong gave evidence before the Tribunal through an interpreter. His evidence was not always easy to follow and his memory was generally poor. Ms Pham also gave evidence through an interpreter. She is currently being treated by a psychiatrist for anxiety, depression and psychosis, and she struggled to give evidence. Their daughter, Linda Khong, also gave evidence. Mr David Green, a psychologist, gave evidence by telephone.
7. The Tribunal has before it documents provided by the Minister relevant to the review, and documents submitted by Mr Khong including statements and letters from his wife, his mother, his sister and his daughter. As the letters from his mother and his sister were written in 2005 and neither gave evidence before the Tribunal, I place no weight on those documents. Also in evidence are records from the Australian Federal Police and the NSW Department of Corrective Services, documents relating to courses undertaken by Mr Khong while in custody, and reports from Ms Pham’s treating psychiatrist.
Legislation
8. By s 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 in s 501(6)(a) of the Act; and
(b)the person does not satisfy the Minister that she or he passes the character test.
9. A person is taken not to pass the character test if he or she has a substantial criminal record. A person has a substantial criminal record if he or she 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(6) (a) and (7).
10. It is common ground that, by reason of sentences of imprisonment in 2003 and 2008, Mr Khong does not pass the character test. The discretion to cancel his visa is thereby enlivened. The issue becomes whether the Tribunal should exercise its discretion not to cancel his visa.
11. The discretion must be exercised in accordance with Direction [No. 41] - Visa refusal and cancellation under s 501 (Direction 41) made by the Minister. The Direction is made pursuant to s 499 of the Act and is binding on the Tribunal: ss 499 (1) and (2a).
12. Direction 41 requires a decision-maker to take into account four primary considerations:
i.the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
ii.whether the person was a minor when they began living in Australia;
iii.the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct;
iv.any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child.
13. A number of other considerations must be considered where relevant but, generally, they should be given less weight than primary considerations: cl 11. The other considerations relevant in this case are:
i.family ties, the nature and extent of any relationships;
ii.any links to the country to which the person would be removed;
iii.hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;
iv.level of education;
v.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.
14. Direction 41 came into effect on 15 June 2009. It replaced Direction 21 which included, as primary considerations, “general deterrence” and “the expectations of the Australian community” both of which were omitted from Direction 41. Direction 41 makes no reference to the change but I accept the submission for Mr Khong that it represents a policy shift away from those considerations, which are more suited to the criminal law than to decisions about the character of persons being considered for removal from Australia.
Primary considerations
The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
15. In considering the protection of the Australian community, due consideration must be given to the objectives 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: cls 5.1 (2) and 10.1 (1).
16. Factors relevant to assessing the risk of harm presented by a person’s continued stay in Australia include the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated: cl 10.1 (2)
Seriousness and nature of the conduct
17. Direction 41 lists examples of offences and conduct that are considered serious. They include the production, possession, importation and trafficking of trafficable or commercial quantities of illicit drugs: cl 10.1.1(2) (f).
18. The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be had to the number and nature of offences, the period between offences, and the time elapsed since the most recent offence: cl 10.1.1 (3).
19. Mr Khong does not dispute that he has committed serious offences. Australian Federal Police (AFP) records show that in October 2000, he was charged with two counts of supplying a prohibited drug and one of possessing a prohibited drug. He was given a suspended sentence of 22 months and placed on a good behaviour bond. Little is known about these offences. They apparently occurred in 1999, and Mr Khong says he was charged with supplying heroin, but nothing is known of the circumstances surrounding them.
20. In November 2000, Mr Khong was convicted of two counts of theft. Again, little is known of this matter, only that police records show that Mr Khong was placed on a good behaviour bond for 12 months and fined $200 without conviction.
21. In May 2003, Mr Khong pleaded guilty to charges that, between November 2001 and January 2002, he knowingly took part in the supply of a prohibited drug, namely heroin; he knowingly took part in the supply of a prohibited drug, namely cocaine; and he supplied prohibited drugs, namely heroin and cocaine, for financial or material reward. He was also charged with possessing .79 grams of heroin.
22. Sentencing him in the NSW District Court in October 2003, Judge Shillington said that Mr Khong had been involved with the activities of “a substantial syndicate” operating in Sydney with which he had been associated. He was a customer of the syndicate and helped with the testing of cocaine and heroin. He was “present and party to numerous conversations at [the premises] in relation to the supply, distribution and compression of prohibited drugs”. He sentenced Mr Khong to concurrent terms of five years with a non-parole period of three years, dating from 29 January 2002.
23. There is no evidence before me as to the maximum sentence for the offences at the time but His Honour’s comment that they were “serious criminal acts” is reflected in the lengthy concurrent sentences he imposed. He noted that Mr Khong’s family was in court, that he had entered pleas of guilty at the earliest opportunity and that his activities related to his need for drugs rather than being purely commercial, although it is not apparent what discount, if any, he applied for these considerations.
24. In February 2004, Mr Khong was convicted of supplying a prohibited drug. This conviction apparently arose out of the charge of possession of heroin in January 2002; Mr Khong’s suspended sentence was called up and he was made to serve it concurrently with his other sentences. The AFP record shows that, at the same time, he was convicted of driving with a low range blood alcohol level for which he was fined $300 and disqualified from driving for four months. The driving offence apparently dates from 2000, although this is not clear from the record.
25. Mr Khong was released on parole in January 2005.
26. In November 2008, Mr Khong pleaded guilty to charges that, between January and June 2008, he aided and abetted the cultivation of cannabis at one premises, and cultivated cannabis at other premises and knowingly allowed them to be used as drug premises.
27. Sentencing Mr Khong in October 2009 for the cannabis offences, Judge English noted in relation to the first that, in June 2008, police had found 196 cannabis plants in a heavily secured residence in what was “a very elaborate setup for the purpose of cultivating cannabis”. Mr Khong was present at the time. He told the officers he had been involved in cultivating cannabis for some time, for which he was paid. He subsequently made full admissions. Judge English considered that he had a “high level of involvement” in the cultivation and preparation of the harvested crop for sale. The quantity involved was significant and the offence fell at the “mid-range of objective seriousness”.
28. In relation to the second charge, Judge English noted that police had entered another well-secured residence and found another elaborate setup and 232 cannabis plants. Mr Khong’s name appeared as the owner or contact on contracts for services to both addresses. He pleaded guilty, claiming he knew the premises would be used for cultivating cannabis but not that a large commercial quantity was to be cultivated. Judge English described this offence as “not so objectively serious”; Mr Khong’s involvement was limited to helping set up certain items on which his fingerprints were found and it fell “at the lower end of the scale for like offences”.
29. Judge English noted that “somewhat unusually, the motivation to commit these offences was to raise funds to undertake a Naltrexone program to assist him from abstaining from heroin”. It was said that Mr Khong had borrowed money from the Vietnamese community to pay for the Naltrexone; when he had difficulty repaying the debt, he was offered an opportunity to “work it off”. The judge noted that it was an offence committed for financial reward, rather than to fund a drug habit, but emphasised that this was not a mitigating factor.
30. Judge English stated that “cannabis is no longer regarded as a soft or recreational drug but rather a drug that can have very serious consequences for users with destructive potential for the lives of young persons in particular”. She noted that 196 plants was “just shy” of a large commercial quantity and significantly more than 50 plants, which constitutes a commercial quantity. She sentenced him to a total of five years and three months imprisonment. His sentence expires on 11 March 2014. He will become eligible for supervised parole on 11 June 2011.
The risk that the conduct may be repeated
31. When assessing the risk that conduct may be repeated, a person’s general conduct and total criminal history are relevant. Particularly relevant are: a recent history of convictions (which should be considered as indicating an increased risk of re-offending); evidence of the extent of rehabilitation already achieved and the prospects of further rehabilitation (in regard to which greater weight should generally be given to evidence from independent and authoritative sources); and evidence of breach of judicial orders: cl 10.1.2.
32. The history of Mr Khong’s drug use is somewhat unclear. According to a pre-sentence report in 2003, his involvement in illicit drugs commenced in Vietnam; it mainly involved heroin but, by the time of his arrest in 2002, had escalated to include ecstasy and cocaine. According to a Probation and Parole Service Immigration Report in December 2010, “service documents compiled for a pre-sentence report in October 2009 indicated that [Mr Khong] used cannabis whilst living in New Zealand however on being interviewed for this report, he insisted his drug use did not commence until he came to Australia.” According to a pre-release report in March 2011, his involvement in drugs started in New Zealand and escalated to smoking heroin after he arrived in Australia and, by 2003, had escalated to using ecstasy and cocaine, and heroin intravenously; it also included a period from 2005 to 2007 when he was smoking ICE several times a week.
33. Mr David Green, a psychologist, saw Mr Khong in October 2009 and prepared a pre-sentence report and supplementary report. He saw Mr Khong again in April 2011 and has prepared a report for these proceedings. He also gave oral evidence.
34. Mr Khong told Mr Green that he started smoking heroin in 1997, after separating from his wife, and was physically addicted within a few weeks; he withdrew from heroin within a few weeks of going to gaol in 2003; he completed his prison term without using narcotics and did not use while on parole for two years after his release.
35. Mr Khong told Mr Green that, in 2007, he was working for himself mowing lawns and removing rubbish. When he was told his wife was having an affair, he became distressed, he started using heroin again and quickly became addicted. He used heroin for about a month but became concerned about his use and saw his general practitioner, Dr Tan, who prescribed a medication which is administered by way of an implant. Mr Khong told Mr Green he had two implants over the course of a couple of months, stopped using heroin, but the first cost $3000 and the second $1500, and he could not afford the cost. He borrowed a total of $6000 from another Vietnamese man for the implants and general living expenses but he was unable to repay the loan. The man suggested he could work it off by cultivating cannabis. This led to his involvement in the second series of offences for which he was gaoled in 2009.
36. There are some unexplained inconsistencies, and some gaps, in the evidence about Mr Khong’s history of drug use. As well as those already noted about when he first used heroin, I note that, in a supplementary pre-sentence report in 2009, Mr Green wrote that (since his first report) he had had access to Dr Tan’s clinical notes which suggested Mr Khong used opiates from about ten months after his release in January 2005 although apparently infrequently. Mr Green did not comment on the apparent discrepancy with Mr Khong’s statement that he started using heroin again in 2007. I also note that, while there are passing references in two reports to Mr Khong’s use of cannabis, cocaine and ICE at times, there is no evidence before the Tribunal about that use.
37. Mr Green stated in his latest report that he has prepared pre-sentence reports on some 110 Vietnamese clients in the past four years with backgrounds similar to Mr Khong; they are commonly poor historians and Mr Khong is a poor historian and “had difficulty articulating complex material”. Mr Khong’s presentation when giving evidence was consistent with Mr Green’s description. It is possible that the discrepancies in the histories of his drug use are attributable to his lack of English skills and the difficulties Mr Green identifies. However, by any measure, he has a long history of involvement with illegal drugs.
38. Mr Khong was still subject to the good behaviour bond imposed in October 2000 when he committed the offences in the period November 2001 to January 2002. Sentencing him in 2003, Judge Shillington said that Mr Khong had expressed remorse and claimed he would be able to stay off drugs in the future but he noted that Mr Khong had said the same when he was given the suspended sentence in October 2000.
39. Judge Shillington noted that Mr Khong had expressed interest in entering programs to deal with his drug problem upon his release and claimed to have overcome his physical addiction to heroin in gaol, but that he had “entered into detoxification centres on two occasions but quickly relapsed into abusive drugs”. As there is no other reference to Mr Khong entering detoxification centres, he was asked about this before the Tribunal. His response was not very clear but it appears they were not detoxification centres but possibly some form of alcohol and drug program undertaken in gaol.
40. Judge Shillington considered that Mr Khong’s “need for rehabilitation while in custody and more significantly upon his release” constituted special circumstances. This was apparently a reference to s 44 of the Crimes (Sentencing Procedure) Act1999 (NSW) which enables a Court to reduce a non-parole period in proportion to the head sentence where there are “special circumstances”, although it is not clear from the transcript to what extent they reduced Mr Khong’s non-parole period.
41. Sentencing him in 2009, Judge English noted that Mr Khong was released in January 2005 as a result of satisfactory prison performance and participation in alcohol and drugs programs and had completed his parole without incident. However, she said, on this occasion he was not naïve; he “knew full well what would happen if he was detected and brought back before the court”; his actions demonstrated a “continuing disobedience of the law” and he had criminal antecedents that disentitled him to leniency.
42. Judge English was satisfied that Mr Khong was truly remorseful and contrite and had insight into the extent of his offending behaviour upon the community, his family and himself. In this regard she preferred Mr Green’s opinion that Mr Khong had insight into the effects of his conduct to that of a probation service report which indicated that he had little such insight. Nevertheless, she said, his prospects for rehabilitation “remained guarded”; he still had the outstanding debt and there were long-standing problems to be resolved in his marriage. She thought the likelihood of Mr Khong re-offending was linked to his prospects for rehabilitation and, if he could resolve the outstanding debt, refrain from illicit substances and repair his relationship with his wife, then his prospects should be enhanced.
43. On 27 September 2010, Mr Khong was disciplined in gaol after returning a positive urinalysis result for buprenorphine, a synthetic opiate available on prescription and used in the treatment of heroin dependence. Mr Khong gave evidence that his cellmate gave him a small amount of a table in powder form which he inhaled.
44. A case note report from the NSW Department of Corrective Services shows that, on 14 September 2010, Mr Khong “self-referred” to a staff member:
… asking if he could apply for a COP [apparently a reference to “change of prison”] to Mannus or Muswellbrook because he is worried about lapsing/relapsing at this centre. He explained that the temptation and opportunity to use at this centre is high and hence he would like to go to a less chaotic centre where he can prepare for is release. This inmate completed SMART in May this year and tried hard in this group but obviously the concepts are harder to comprehend when English is your second language. [He] will miss out on visits from family if he gets COP but is prepared to make this sacrifice as his priority is to avoid lapse/relapse. [He] presented in an open and honest fashion and I support his request for COP.
45. A case note dated 27 September 2010 shows that Mr Khong’s work order had been withdrawn “due to dirty urine”. A pre-release report in March 2011 shows that he underwent the urinalysis on 5 September 2010. In other words, he had apparently already taken the buprenorphine when he asked to apply for a transfer.
46. According to Mr Green’s most recent report, Mr Khong told him he was feeling under stress after receiving notice that he was likely to have his visa cancelled, and his older son was in trouble with the police after a fight. However, I note that the urinalysis was done on 5 September 2010 and the Minister’s letter concerning possible cancellation of his visa is dated 5 October 2010. Nevertheless, I accept that Mr Khong appears genuinely to have taken steps, on the one occasion that he did relapse, to try to not let it happen again.
47. In evidence before the Tribunal, Mr Khong said that the debt that led him into the cannabis offences has been forgiven. His evidence was difficult to follow. While this may have been due in part to interpretation, it made little sense. He said that, when he went to prison, the debt, which was $7,000 or $8,000 was forgiven. It is not clear why this is so and, certainly, if the debt is still owing, it would pose a real risk of repeating his offending behaviour and more so if he is unable to obtain employment.
Mr Green’s evidence
48. Mr Green has been in practice as a psychologist since 1986. He has a clinical practice dealing in anxiety and depression and related issues. Drug and alcohol rehabilitation is not an area of his expertise but he is experienced in preparing pre-sentence reports. He also sees people with drug and alcohol problems, although it is a small part of his practice.
49. Mr Green interviewed Mr Khong through an interpreter for a second time in April 2011. He reports that Mr Khong’s English was satisfactory for reporting events and basic material but he had some difficulty articulating more complex material or material requiring personal reflection. He took a detailed history from Mr Khong and says he is inclined to accept his version of events.
50. Mr Green gave evidence that certain factors are predictive of recidivism. Some, such as previous criminal history, cannot be altered. “Dynamic” factors, which can be altered, include anti-social personality, attitudes, values and associates; lack of employment and education; poor-self-control and problem-solving skills; substance abuse and family dysfunction.
51. Mr Green does not believe Mr Khong has an anti-social personality. In his view, the main risk factors in his case are his family dysfunction, substance abuse and poor decision-making. However, he believes Mr Khong recognises the harm he has done to his family and says he is willing to attend counselling with his wife. He believes, from the history of their relationship, that Ms Pham is committed to Mr Khong and that, with counselling and the means of resolving their conflict, it is likely they will have an ongoing satisfactory relationship. Mr Green says Mr Khong has had long periods of abstinence from heroin and is not currently addicted. He believes Mr Khong is at a stage in his life where he is probably unlikely to return to opiate use but his chances of achieving this will be improved with appropriate counselling. He believes Mr Khong has regret for his actions, has reasonable prospects for rehabilitation and, on balance, is probably unlikely to re-offend. He thinks there is a high risk of his returning to opiate use if he is deported but a very low risk if he remains in Australia with his family.
52. Mr Green believes Mr Khong needs ongoing supervision by the Probation and Parole Service, ongoing drug and relationship counselling and a relapse prevention program. He would need weekly counselling at first, with less regular sessions depending on his progress, over a period of two years.
53. I think it fair to say that Mr Green’s assessment is optimistic. For instance, one of general risk factors he identifies is employment prospects and education skills. He notes that Mr Khong has undertaken a number of courses in gaol and acquired welding skills, and he thinks he has a good opportunity, in the current market, of obtaining employment in that field.
54. Mr Green may be right about Mr Khong’s employment prospects but his long history of intermittent, unskilled work, his lack of education and his relatively poor English suggest he may have more difficulty than Mr Green thinks. Mr Khong told Mr Green that he could work in his sister’s shop until he finds permanent employment, and he apparently worked for her in the past. However, he has no firm offers of employment and his plans are vague; he says this is because he is uncertain of the outcome of this application.
55. Given Mr Khong’s admitted propensity to use drugs when under stress and that he turned to drugs previously when he had debts, his uncertain employment prospects must increase the risk that he will come under financial stress and, if he does, that he will use drugs again. Moreover, Mr Green’s assessment of his low risk of re-offending depends in large part on him undergoing fairly intensive counselling and rehabilitation, alone and with his wife, over two years. The history of the relationship and the stresses that Ms Pham’s illness will likely bring to it are further reasons to question whether he will be able to keep from re-offending. That said, I accept Mr Green’s opinion that Mr Khong has insight into the harm his conduct has caused his family and is genuinely motivated not to use drugs again.
56. The pre-release report shows that, in May 2010, Mr Khong completed a Getting Smart Drug and Alcohol program, and records showed that he tried hard in the groups but the concepts appeared harder for him to understand as English is his second language; he applied to do the program again in October 2010 but was moved to another facility around that time where he had to go on a waiting list.
57. The pre-release report also notes that Mr Khong had undertaken various vocational and other programs while in gaol and had held a number of employment positions in gaol. It notes that his employment supervisors “extol his good work practices and co-operation”. He has “good working skills and is one of our best welders”. It notes that he has been offered casual employment upon his release at his sister’s place until he can find permanent, full-time employment. It concludes that, despite the positive urinalysis, Mr Khong has not been a management concern while in custody, has engaged in appropriate interventions and service and has a suitable post-release plan in pace. It supports his release to parole.
58. The pre-release report assesses Mr Khong as suitable for a “medium/high level of intervention” after release and recommends his parole order be subject to conditions including weekly reporting with reduced frequency in time as deemed appropriate; regular home visits by the service; regular contact with Ms Pham to monitor Mr Khong’s integration and progress in the community; a requirement to undertake and maintain a program directed towards controlling his abuse of drugs and/or alcohol arranged by his supervising officer; and random urinalysis at the direction of his parole officer.
59. It was submitted for Mr Khong that a distinction should be drawn between the first offences for which he was imprisoned, which were connected to his own drug addiction, and the later offences which were related to his need for money to pay off a debt. The distinction does not help Mr Khong insofar as the seriousness of the offences because the cannabis offences were on a scale that was serious and, as Judge English noted, involve harm to the community. However, I accept that, insofar as his risk of re-offending is related to his own drug use, the cannabis charges pose less risk.
60. Mr Khong’s last criminal charge relating to his use of drugs was in 2002. He admits to using heroin again around 2007 but took steps to see Dr Tan. Rather ironically, it was his desire to stop using heroin that led to the cannabis charges. His use of buprenorphine in September 2010 cannot be ignored, especially as he had already completed the SMART program, but the evidence shows that he took steps fairly quickly to try to remove himself from the risk of using and apparently impressed the officer concerned with his genuineness.
61. The Minister contends that Mr Khong’s recent history of offending, being the charges in June 2008, counts against him. Clause 10 of Direction 41 provides that the time elapsed since the most recent offence and a recent history of convictions are relevant, respectively, to the seriousness of conduct and the risk that it may be repeated. I have some difficulty considering “time elapsed since the most recent offence” when an applicant has been in custody since charged. This consideration is easier to apply where, for example, offences were committed some years before charges are laid and the applicant can demonstrate changed behaviour in the meantime, but it is difficult to know how to evaluate and apply it in Mr Khong’s case.
62. Mr Khong’s criminal conduct involves the use, cultivation and supply of a range of drugs and is unquestionably serious. I accept Mr Green’s evidence that the risk that he may become involved with drugs again in the future is now lower than before. I accept that the risk will be reduced considerably while Mr Khong is on supervised parole. It is relevant that he will be on supervised parole for three years after his release. However, the seriousness and nature of his conduct and the risk that it may be repeated mean that the need to protect the community from the harm associated with illegal drug use weighs in favour of cancelling his visa.
Whether the person was a minor when they began living in Australia
63. Clause 10.2 provides that, if a person was a minor when they began living in Australia and spent their formative years here, thereby increasing the likelihood of having established greater ties to the Australian community, this should be given favourable consideration.
64. Mr Khong was 28 when he arrived in Australia. Nothing about this consideration weighs in his favour. If anything, it might be said to weigh against him because, as an adult, he arrived “with the knowledge, duties and responsibilities of an adult in the position of the visa holder”: Rosson v Minister for Immigration and Citizenship [2011] FCA 194 at [21], per Rares J. In Rosson, Rares J rejected the submission that cl 10.2 can only be used to give favourable or neutral consideration, and cannot be used to give adverse consideration to the fact that a person was not a minor when they arrived in Australia. Indeed, he considered a decision-maker bound to have regard to that consideration by force of cl 10(1)(b).
65. That said, Mr Khong left his home country at a young age (he was 17), apparently under difficult circumstances, spent several years in a refugee camp, and then in New Zealand, before arriving in Australia. In my view, these factors make some latitude reasonable and I do not think this consideration should weigh against him.
66. I find this consideration weighs neither for nor against Mr Khong.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct
67. Clause 10.3 provides that, reflecting the fact that the longer a period of residence, the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer a person has ordinarily been resident in Australia before engaging in criminal activity or activity that bears negatively on their character. By way of example, it is stated, “a period of more than 10 years residence prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
68. Mr Khong arrived in Australia in May 1996. His first offence, of supplying heroin, was in 1999. The period was not substantial and cannot be said to weigh in his favour. On the other hand, I do not think it is so short that it should weigh against Mr Khong.
69. I find this consideration weighs neither for nor against cancellation of Mr Khong’s visa.
Any relevant international law obligations, including but not limited to, the best interests of the child, as described in the Convention on the Rights of the Child
70. If there is a child under 18 potentially affected by the cancellation of a visa, regard must be hard to his or her best interests: cl 10.4. The Direction notes that, under Australian law, it is generally presumed that a child’s best interests will be served by remaining with its parents.
71. Factors to be taken into account when considering the best interests of a child affected by a decision include the child’s age; the nature of his or her relationship with the person concerned; the duration of the relationship, including periods of separation and the reasons for separation; the extent to which the person is likely to play a full parental role; the likely effect of separation; the time that the child has spent in Australia; his or her wishes; and whether the child is likely to accompany the person overseas if removed. 10.4.1 (5).
72. Mr Khong’s son, Kevin, is aged 14 and in high school. Unlike his older siblings, he has not been in any trouble. Ms Pham says she is concerned that, without his father, he will not have any support during his teenage years. Mr Khong’s daughter says their father’s conduct has had positive and negative effects on them but she does not want Kevin to go down the same path as his older brother, Tommy, or herself, both of whom have been in trouble with the police. She says that she and Tommy suffered emotionally without their father and she believes that having no authority figure will affect Kevin adversely.
73. The Minister contends that the nature of Mr Khong’s relationship with his children raises questions about the extent to which he has been able to play a meaningful parental role in regard to Kevin. The Minister notes that Mr Khong conceded when sentenced in 2003 that he had not been a proper parent, especially to his daughter, and that evidence from his wife and daughter indicates that his conduct has had an adverse effect on his older children in particular.
74. Mr Green gave evidence that, despite Mr Khong’s history of drug use and absences from the family, an ongoing relationship with his father is vital for Kevin’s development. Mr Green did not interview Kevin but says that, unless a relationship is abusive or neglectful, it will always be in a child’s best interest to maintain the relationship with a parent. Mr Green says that Mr Khong’s absence from his son during periods of separation and when in gaol are arguably neglectful but he is still able to have a relationship with Kevin from gaol. He does not consider the relationship could be maintained at a distance if Mr Khong is deported. He says potential availability is important for children. He does not consider communicating by means such as telephone can compensate for the distance, and telephone calls would gradually peter out. He believes it would have a damaging effect on Kevin if Mr Green is removed.
75. I accept that it is in Kevin’s best interests that his father remain in Australia. This consideration weighs against cancellation of Mr Khong’s visa.
Other considerations
76. There is overlap between the considerations concerning Mr Khong’s family ties in Australia, his links to New Zealand, and the hardship likely to be experienced by him or his family if he is removed, and I will deal with them together
77. Mr Khong’s de facto wife and three children, his mother and his younger sister live in Australia. They are all Australian citizens. A brother who also lived here died about a year ago.
78. Mr Khong’s daughter, Linda, lives away from home. She says she left university after her second year when she learned her father was imprisoned; it was an emotional time and she was not able to continue her studies. She has now resumed her studies on the strength of his assurance that he will not re-offend. She says her brother Tommy suffered from the absence of their father and has been in trouble with the police but has recently started working to help support the family and is looking at studying again. She says their father is an important figure in their lives and she loves him dearly. Mr Khong’s sons live at home with their mother. The family visit him weekly or fortnightly from Sydney and he telephones Ms Pham every day and speaks to her and whichever of the children is around at the time.
79. Ms Pham has been under the regular care of a psychiatrist, Dr Law, since October 2008. A number of reports from Dr Law are in evidence. They show that Ms Pham suffers from moderately severe anxiety-depression disorder with “psychosis not otherwise specified”. In November 2009, she suffered from clinically significant psychiatric symptoms, she was medically unfit to work and a friend of hers told Dr Pham that she roamed the streets at night. In January 2011, Dr Law wrote that Ms Pham lived with her sons; her older son did not and could not care for her and her daughter lived elsewhere and only visits her occasionally; it was a difficult situation because she needed care but immediate family members were unable to care for her. Linda Khong gave evidence that she cannot care for her mother because she lives away from home, she is attending university and there is too much conflict between them. Ms Pham gave evidence that she cannot raise her children herself and needs her husband’s help. She says he is now very good to her.
80. As Mr Khong concedes, he has not shown himself to be a very good father in the past. The Minister submits that there is a real risk that he will use drugs again and it is as likely that his presence will have a negative effect on his children as a positive effect. I accept there is some force to that argument. However, it is also clear that Ms Pham is very unwell and has limited capacity to care for herself or her children. I accept that his removal is likely to affect Ms Pham in particular and that her mental health is likely to deteriorate. I accept that his removal will cause them serious hardship.
81. Mr Khong spent five years in New Zealand before coming to Australia 15 years ago. He has no family there and does not appear to have any friends there. Ms Pham says, and I accept, that the family would not go to New Zealand if he is deported there, but would remain in Australia. Mr Khong told Mr Green he had great difficulty finding employment when he arrived there and eventually found casual work as a panel beater through people he met in the camp in South Korea but he has had no contact with them since and does not know how to contact them. I have no reason to doubt what he says.
82. I accept that it would be very difficult for Mr Khong to re-establish himself in New Zealand, especially without his family. His English language skills have apparently improved but are still limited. Mr Green believes there is a very high risk that he will return to using drugs if removed to New Zealand because he will have no family support. It might be said that this only underscores Mr Khong’s precarious position in relation to drugs but I accept that returning to New Zealand would cause him hardship.
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
83. In December 2004, the Department of Immigration and Multicultural and Indigenous Affairs notified Mr Khong that his visa was liable to cancellation on character grounds. His then solicitors made written representations on his behalf and, in May 2005, the Minister decided not to cancel his visa. However, on 26 May 2005, the Department issued a written warning to Mr Khong that conviction of any further offences would result in a fresh assessment of his visa.
84. For Mr Khong it is submitted that the Tribunal should take into consideration that the Minister decided against cancelling Mr Khong’s visa on the earlier occasion. However, the fact remains that he re-offended despite the warning, and after representations to the effect that his life had stabilised and his time in detention, the support of his family and his willingness to enter a drug program when released made the chance that he would re-offend remote. It is reasonable to assume that the Minister took his submissions into account when deciding against cancelling his visa previously.
85. I find the previous warning weighs in favour of cancelling Mr Khong’s visa.
Conclusion
86. Mr Khong’s offences are unquestionably serious and a serious question hangs over his prospects for rehabilitation. In other circumstances, I would have little hesitation in deciding that the risk of his re-offending and becoming involved in the same kind of drug-related offences, and the threat that he thereby poses to the Australian community, would weigh in favour of cancelling his visa.
87. However, I am satisfied it is in the best interests of Mr Khong’s son, Kevin, that his father remain in Australia. I am also satisfied that it would cause hardship to his older children. In particular, I am satisfied that it would cause serious hardship to Ms Pham, because of her serious mental illness, if he is removed.
88. I accept that Mr Khong genuinely wishes not to become involved in drugs again. There is no guarantee, until he is released, precisely what his parole conditions will be but there is every indication from the sentencing remarks and from the Probation and Parole pre-release report, that he will be closely supervised for a period of three years and I take into account that Mr Green believes he has good prospects of rehabilitation with close supervision and counselling for two years.
89. The considerations are finely balanced for and against cancellation but, in all the circumstances, I am satisfied that I should exercise my discretion not to cancel Mr Khong’s visa.
90. The decision under review is set aside.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Toohey
Signed: ...........[sgd].................................................................
Diana Weston
AssociateDate of Hearing 23 May 2011
Date of Decision 31 May 2011
Solicitor for the Applicant Mr D Nguyen, DPN Company Solicitors & Barristers
Counsel for the Applicant Mr N Poynder
Solicitor for the Respondent Ms A McCormick, Minter Ellison
Counsel for the Respondent Mr Tembey
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