Lam and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 541
•8 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 541
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/84
GENERAL ADMINISTRATIVE DIVISION ) Re THANH TRA LAM Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date8 June 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – Subclass BF 155, five year resident return visa - decision not to cancel visa where applicant fails character test - substantial criminal record - Ministerial Direction No. 21 - primary and other considerations - whether other considerations can outweigh primary considerations – two convictions for possessing heroin for sale - hardship to immediate family members lawfully resident in Australia - decision under review affirmed.
Migration Act 1958, s 501(2)
Re Minister for Immigration and Multicultural and Indigenous Affairs and Hicks (2004) 81 ALD 588
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268
Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822
Madafferi v Minister for Immigration and Multicultural Affairs [2002] 118 FCR 326
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505
REASONS FOR DECISION
8 June 2005 Deputy President D G Jarvis 1. The applicant, Thanh Tra Lam, came to Australia from Vietnam on 28 July 1994 with his mother and two younger sisters.
2. On 29 March 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to cancel Mr Lam’s visa on the grounds that Mr Lam did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). Mr Lam had been the holder of a Subclass BF 155, five year resident return visa. The delegate also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the visa. Mr Lam has applied to this Tribunal for review of the delegate’s decision.
Issues for the Tribunal
3. The Statement of Facts, Issues and Contentions lodged on behalf of Mr Lam includes a concession that he does not pass the character test under s 501 of the Act. This could not have been contested in any event, because under the relevant provisions of the Act, a person does not pass the character test if he or she has a substantial criminal record, and is taken to have such a record if he or she has been sentenced to a term of imprisonment of twelve months or more. Mr Lam was sentenced to terms of imprisonment for terms exceeding this period on two occasions, 24 November 1995 and 10 July 2001.
4. However, there is a discretion under s 501(2) of the Act not to cancel a visa. The only issue before the Tribunal is whether the discretion not to cancel Mr Lam’s visa should be exercised in his favour.
Background
5. Mr Lam was born on 17 September 1972 in Vietnam. He completed his secondary education in Vietnam and enrolled for a mechanical engineering course. He finished the first year of that course and was in the second year when he came to Australia with his mother and two sisters. He was then nearly twenty two years of age.
6. Mr Lam’s father, Hong Hoan Lam, is aged fifty seven. Mr Lam’s father and his family had been well to do, and had owned a farm in Vietnam. He served with the army of South Vietnam and at the end of the Vietnamese war in 1975 he was imprisoned by the communists in a “re-education camp”. He was detained there for five years and was severely treated, being starved, beaten, tortured and humiliated. He emerged much changed. Following his release he suffered severe physical pain as a result of the torture to which he had been subjected. He had frequent and blinding headaches, together with stomach cramps which left him virtually paralysed and helpless. No medical attention was available.
7. Mr Lam’s father escaped from Vietnam in March 1989, and after remaining in a refugee camp in Indonesia he arrived in Australia in March 1993. The applicant and his mother and two sisters joined his father in Australia in July 1994.
8. The applicant had lived with his mother and father and two sisters for only about three or four years before coming to Australia. This was because between 1975 and 1986 his parents were not allowed to live together, and at first he and his sisters were cared for by their mother. However, when he was about nine years of age, he was sent to stay with his father and his relations for about twelve months or so. This was not long after his father had been released from the “re-education” camp. His father was then in very bad health and it is likely that his attitude to his son was affected by the treatment to which he had been subjected by the communists, and his concern that he might die at an early age, so that his son would then have the responsibility of taking care of his wife and family. The applicant had had very little contact with his father before being sent to stay with him. Regrettably, after he was sent to live with his father he had a very different relationship with him. He said his father constantly criticised him and would physically punish him if he fell short of his expectations, and this was fairly often. He said he became “very, very fearful” of his father, and he was made to feel “pretty useless and not up to standard” (exhibit A1, paragraphs 13 and 19). After about twelve months he returned to live with his mother and sisters until the family was reunited again in 1986. However, whenever he saw his father he was subjected to criticism, and on occasions would be punished. His parents argued about the way his father treated him.
9. The applicant now has three sisters, Tien Lam aged twenty three, Cathy Lam aged twenty, and Hao Lam, who was born after the family came to Australia and is now aged six.
10. His extended family comprises a number of aunts, uncles and cousins who live in Vietnam. His cousins range in age from about seven or eight up to forty. Neither the applicant nor his immediate family have much contact now with their extended family in Vietnam, and they only communicate if there is important news, such as the recent death of the applicant’s paternal grandmother.
11. The applicant has only worked for about 3 months, doing fruit picking, since coming to Australia (excluding outside employment as a concreter in which he was permitted to engage in while in prison). He went to an English school, but found it very difficult to learn English. His sisters did much better, and he fell behind them and other class mates. He said that his father was disappointed with his progress, and would tell him time and time again that he was letting the family down. The applicant said he continued to be very frightened of his father, and dreaded going home in the afternoons after his English class.
12. The applicant then began associating with other Vietnamese boys who were also not making much progress in the English classes, and were also being subjected to criticism from their parents. As a result, a group of Vietnamese boys, including the applicant, arranged to rent a house and to receive a living away from home allowance for the purposes of study.
13. After that, the applicant met young people who were smoking marijuana and using heroin. He then did this himself, and became addicted to heroin. He then began selling heroin in small quantities to other persons in order to pay off money he owed to the person supplying heroin to him. He was later caught by the police and charged.
14. The applicant has the following convictions for which he was sentenced to terms of imprisonment.
(a)On 24 November 1995, he was convicted by the District Court of South Australia of possessing heroin for sale. He was sentenced to five years’ imprisonment, with a non-parole period of one year.
(b)On 10 July 2001, he was convicted for a second time of possessing heroin for sale and was sentenced to seven years’ imprisonment with a non-parole period of three years and six months.
15. In addition, the applicant has been convicted of the following offences.
(a)On 22 November 1995, he was convicted of disobeying a provisional licence condition and fined $70.
(b)On 15 January 1998, he was convicted of receiving and fined $650.
(c)On 2 March 2000, he was convicted of five counts of estreatment of bail, with estreatment of $1,000.
(d)On 15 June 2000, he was convicted of two counts of possessing a nominate control substance, and was fined $75 on both counts.
(e)On 2 May 2001, he was convicted of unlawful possession and was ordered to perform 280 hours of community service within the following twelve months.
(f)On 2 July 2001, he was convicted of possessing a dangerous article, namely a stun-gun, and was convicted without penalty.
Legislation
16. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
17. Subsection 501(2) provides as follows:
“(2) The Minister may cancel a visa that has been granted to a person 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.”
Consideration of Ministerial Direction No. 21
18. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a direction made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall address the relevant considerations in the Direction in turn.
19. The three primary considerations in Direction No. 21 are as follows:
(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
First Primary Consideration - Protection of the Australian Community
20. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
21. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
22. Paragraph 2.6 of the Direction sets out examples of offences which the Government regards as very serious. The first of those examples are referred to in paragraph 2.6(a). This includes trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs. Paragraph 2.6(a) then states:
“• persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
•the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
•offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;”.
23. The above provisions clearly indicate the extent of the Government’s concern about offences involving the supply of illicit drugs, particularly where the drug concerned will lead to dependency or addiction. Regrettably, the applicant has two convictions for such offences.
24. Under paragraph 2.7 of the Direction, I must take into account the sentence imposed for the relevant crime(s), and (by virtue of paragraph 2.8(a)) any relevant mitigating factors. The sentence of five years’ imprisonment imposed for the applicant’s first offence of possessing heroin for sale was a substantial sentence. He was released from gaol after serving a little over a year in custody (although this does not detract from the significance of the length of the term of imprisonment to which he was sentenced: Re Minister for Immigration and Multicultural and Indigenous Affairs and Hicks (2004) 81 ALD 588 at [13]). The sentence for the second offence, namely seven years’ imprisonment, was also substantial. The second offence was committed before the applicant had finished his period of parole for the first offence, and this adds to the gravity of that offence. There is some reference in the applicant’s witness statement (exhibit A1) to mitigating factors in relation to the first offence, namely his assertions that the offences took place when he was addicted to heroin, and that he only sold the heroin in small quantities to people who were actively seeking it. I have referred above to the difficulties in the applicant’s relationship with his father, and with his English classes. These matters appear to have been instrumental in his leaving home, and that in turn meant that he then lived with other young people who were using illicit drugs, including heroin. The remarks of the sentencing Judge in each case indicates that the offences were regarded as serious. I note that the applicant appealed against both his conviction and the sentence imposed in relation to his second offence, but both appeals were dismissed. I regard the offences as serious, notwithstanding the mitigating factors to which I have referred.
25. As to paragraph 2.7(a) of the Direction, it must be said that the extent of his offending since he has been in Australia has been significant. He has spent nearly six years in prison (that is, from November 1995 until December 1996, and from August 2000 until the present time). In spite of this, he has committed a significant number of other offences which did not result in a custodial sentence, although according to the Direction, these other offences are not regarded by the Government as serious offences. I also note that the first offence which the applicant committed after being released from his first period of imprisonment was the offence of receiving, for which he was convicted on 15 January 1998. This offence occurred within only about nine months of his release from prison. Further, there was not a significant period after that between subsequent offences in the period prior to his imprisonment in August 2000.
26. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. It is also relevant to consider whether the non-citizen has committed a further offence after having been warned previously about the risk of his or her visa being cancelled (see paragraph 2.10(a)). Under paragraph 2.10(b), the number of previous convictions in Australia, and the gap(s) between convictions and the time since an earlier conviction must be considered. Under paragraph 2.10(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make are also relevant.
27. The applicant gave evidence that he gave up heroin in 2000, after he was imprisoned for the second time. He did not take methadone to assist recovering from his addiction, because he was concerned about becoming addicted to methadone. Regular testing since he has been in prison has confirmed that he has given up heroin. It is to his credit that he has done so. It is clear from his evidence that he is very conscious of the damage that has been caused to himself and his family by his criminal conduct, and he is clearly repentant and very ashamed of the dishonour which his conduct has brought upon his family.
28. It also appears from the applicant’s evidence and from the evidence of his parents that his family is understanding and supportive. He has completed certain drug, anger management, educational and vocational programmes in prison, although he failed to persist, or in some cases report, for other drug programmes. He appears to have matured during his time in prison, and now has a much better relationship with his father, and he understands the difficult experiences which his father has endured in Vietnam and their effect on his father. For his part, the applicant’s father appears to have a better understanding of the applicant’s position and of the circumstances which gave rise to his involvement with illicit drugs.
29. The Welfare Director of the SA Chapter of the Vietnamese Community in Australia, Lan Mong Nguyen, gave evidence that on the applicant’s release from gaol that organisation would use its best endeavours to assist him to avoid becoming involved again with illicit drugs, and to find employment, perhaps with that organisation itself. Further, that organisation would provide support for Mr Lam’s family. Ms Nguyen said that she regards the combination of support for the person affected by addiction and his or her family as being most important in achieving a successful recovery from addiction. A counsellor, Mr John Brasted, also gave evidence of the support that would be available to the applicant and his family if he is able to remain in Australia, and said that the applicant would be assisted by overcoming his depression and finding employment, and by taking his place again in the community.
30. The applicant is to be commended for giving up heroin, and for his more mature attitude to his present circumstances and his past offending. However, it appears from exhibit R2 that the results of urine tests conducted during his period in prison that he has used marijuana during his time in prison. Five of thirteen tests over a period from 16 November 1999 to 23 September 2004 were positive (exhibit R2, page 111). He claimed that the most recent of those positive results was a consequence of passive smoking in the cabin of a truck. However, he also admitted that he used marijuana again after that in January this year, to overcome his depression about being removed from Adelaide Pre-Release Centre (APC) (where he was able to engage in outside work) to Yatala and then to Mobilong Prison. This transfer occurred because he was using a mobile phone, apparently in breach of prison regulations. His continued involvement with illicit drugs in prison is inconsistent with the applicant’s promises as to his future conduct, especially when viewed in the light of his overall criminal history. In all of the circumstances, I consider that there is at least a moderate risk of recidivism, notwithstanding the applicant’s declarations as to his future intentions.
31. General Deterrence The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). Of course, any deterrence would depend on the publicity given to any cancellation of a visa. In the present matter, if the applicant’s visa is cancelled, that will presumably become known to friends and acquaintances of the applicant, and may provide some deterrence to other persons. Further, the fact of cancellation would enable the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) to point to an established precedent. Indeed, it could give some publicity to the precedent in order to reinforce the view which the Government has as to the seriousness of crimes involving the trafficking in illicit drugs of dependence or addiction, and the Government’s policy of taking reasonable steps to protect the Australian community, and in particular young people, from such crimes. In this regard, I note the reference by Deputy President Walker in Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at [33] to recent criminology and social science research which indicates that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed.
32. Having had regard to all of the factors relevant to the first primary consideration, I consider that this would indicate that the visa should be cancelled.
Second Primary Consideration – Expectations of the Australian Community
33. This second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
34. Counsel for the applicant, Mr Winter, relied upon the evidence given by the witness Peter Jackson in relation to this consideration. Mr Jackson worked as a police officer in the United Kingdom between 1948 and 1981, except for a period between 1953 and 1954, when he worked with the military police in Canada. He then came to Australia with his wife and joined his children who were already living here, and he has lived in Australian since 1981. Mr Jackson gave evidence that he has come to know the applicant by visiting him at Mobilong Prison and helping him with his English skills. He expressed the opinion that as a member of the Australian community, he would have no hesitation in allowing the applicant to have a “second chance to have a second go at life and prove himself”. He said that he thinks the applicant “deserves it given the effort he has made at rehabilitation, the genuineness of his contrition and his sincere desire to care for his parents. I do not believe that he will offend again”. (exhibit A2, paragraph 20).
35. Counsel for the respondent, Mr Prince, pointed out that the applicant committed his second offence of possession of heroin for sale when he was still on parole from his first conviction for this offence, so that he had already been given a second chance. However, I do not think that this is the case in the context of the present proceedings, which relate to the cancellation of his visa. The applicant was not warned at the time of his first offence that further offending might lead to the cancellation of his visa. It appears that he was not aware of this possibility until he was served with a notice of cancellation in March this year. It might therefore be said that the question which now arises as to whether he should be given a second chance to remain in Australia. However, this question must be considered with reference to the very serious offence of which he has been convicted on two occasions. Offences involving commercial dealing with drugs of addiction such as heroin are totally unacceptable to the Australian community. The fact that the second offence occurred when he was on parole adds to the gravity of the second offence. In addition, the applicant’s overall criminal record is significant. I think that the Australian community would expect that the applicant should be removed from Australia.
Third Primary Consideration – Best Interests of a Child or Children
36. Whilst paragraphs 2.14 and 2.15 in this part of the Direction deal with the relationship between the non-citizen and that person’s children, this consideration can also extend to other children under eighteen years of age, because paragraph 2.3(c) refers to the best interests of the child or children in all cases involving a “parental or other close relationship” between the child or children and the person under consideration. The only child under eighteen years of age who might be relevant to this consideration is the applicant’s youngest sister, Hao Lam, who is six years old.
37. Paragraph 2.16 requires decision-makers to have regard to various factors, and this paragraph does not contemplate that the non-citizen is the parent of the child or children concerned. The considerations in paragraph 2.16 include the nature of the relationship between the child and the non-citizen, and the hypothetical prospect of developing a better/stronger relationship in the future. Because the applicant has been in prison since August 2000, and before that had not lived with his parents for some years, Hao has had virtually no opportunity to get to know the applicant. No doubt she has a close and loving relationship with her parents and two solder sisters. In this case, I attach very little weight to the hypothetical possibility that she may develop a better or stronger relationship with the applicant in the future.
Other Considerations
38. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, I take into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
39. The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. I note that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the wide discretion conferred on the respondent by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268, and other authorities there discussed). (I also note that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant: see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs [2002] 118 FCR 326). It appears likely that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 was amended to include the word “generally”, whereas the corresponding paragraph of the predecessor of the current Direction, namely Direction No. 17, omitted this word. Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:
“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”
This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.
40. I have referred to the above analysis in earlier decisions which I have made in matters of this kind. Although Mr Winter did not refer to these earlier decisions or to any of the authorities analysed in the preceding paragraph, he submitted that in the circumstances of the present matter, certain of the factors under the heading of “Other Considerations” were very significant, and should outweigh the adverse conclusions arising from evaluating the three primary considerations. I repeat the conclusion I reached in the most recent of my earlier decisions, namely Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs (2005) AATA 505, where I said at [54]:
“I have concluded, from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi), that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.”
41. As I understood it, Mr Prince accepted that this was a correct conclusion, but submitted that on the facts of the present matter, the balancing process should not lead to any of the other considerations outweighing the first and second primary considerations. I will accordingly examine the relevance of the other considerations to the present matter.
42. The first “other consideration” which is relevant is that referred to in paragraph 2.17(a), namely the extent of disruption to the non-citizen’s family, business and other ties to the Australian community. It is also appropriate to refer at this point to paragraph 2.17(c) of the Direction. This refers to the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether those family members would be able to travel overseas to visit the non-citizen, the nature of the relationship between that person and those family members, and whether they are in some way dependent on the non-citizen for support which cannot be provided elsewhere.
43. In his evidence, the applicant referred to the culture of Vietnamese people whereby it is expected that sons will care for their parents and put money aside to look after them in their old age should they become sick and disabled. He also said that it was customary for daughters of Vietnamese families to assist their husbands to look after their husband’s parents, rather than their own parents. He expressed deep concern that if he is removed from Australia, he would be unable to fulfil his obligations to his parents. The applicant’s sister, Tien Lam, also referred in her evidence to the applicant’s awareness of the trouble and grief he had already caused to his family, and his desire to be given the chance to change and go back to his family and look after his parents. The applicant’s father also referred to his son’s duty to look after his mother and sisters, and to the special place which the eldest son holds in a Vietnamese family. He regarded this as all the more important because of his own continuing ill health.
44. A medical report from a psychiatrist, Dr R L Chester, was also tendered in support of the application. In this report Dr Chester narrates the history he obtained from the applicant’s parents. He concludes that they each had symptoms and signs strongly suggestive of a psychiatric disorder. He says (exhibit A8, page 4, paragraph 1):
“With Mrs. Tran, her symptoms suggest a differential diagnosis of a generalized anxiety disorder with accompanying symptoms suggestive of a depressive episode. There is also significant evidence of a posttraumatic (sic) stress disorder. Doubtlessly, Mrs. Tran has significant psychiatric pathology with symptoms of anxiety and depression.
With Mr. Lam the diagnosis would be similar to his wife, but with the added differential diagnosis of a dysthymic disorder. However I suspect that with further enquiry the degree of his posttraumatic (sic) stress disorder would be revealed.”
He then proceeds to say that he believed that the parents’ symptoms are severe, and that they should have an anti-depressant with appropriate support and skilled counselling as a matter of urgency in order to arrest further deterioration in their condition.
45. Dr Chester then addresses the possibility of the applicant being deported as follows (exhibit A8, pages 4 – 5, paragraph 5).
“The deportation of their son will doubtlessly lead to further deterioration in their psychiatric conditions. I suspect this will occur even if they are having treatment, which would hopefully limit the degree. Certainly the deportation would stress their marriage and it would have to be wondered whether, considering how things are now, their marriage would survive.
As emphasised by both, but especially Mr. Lam, the reason why they have been able to endure the extraordinary hardships with which they have been confronted was because of hope or belief in the future of their family. They have both emphasised how this is focused especially upon their son. He has crushed their hopes and they feel let down, embarrassed, and ashamed, but the loss of their son would remove the main point of their existence (as emphasised by Mr. Lam) and their lives (especially for Mr. Lam) would be pointless.
Without overstating the point the deportation would be tragic for them.”
46. In her evidence the applicant’s sister, Tien Lam, said that on a personal basis, she would be quite devastated if her brother had to leave Australia; she said that he is very important to her, she loves him dearly and he has always treated her with kindness, consideration and love. She also said that she was very worried about the impact that the applicant’s departure would have on her parents. She said that her parents had very little income, and would be most unlikely to be able to visit the applicant in Vietnam if he is removed to that country. She says in her witness statement (exhibit A3, paragraph 35):
“I don’t know how often they could possibly go – perhaps once every 4-5 years. Both of them are getting older and given their state of health, I would expect that this will mean that they will rarely see their son, if ever.”
47. I conclude that the cancellation of the applicant’s visa would cause significant disruption and hardship to the applicant’s immediate family members.
48. Paragraph 2.17(d) of the Direction requires me to consider also the family composition of the applicant’s family, both in Australia and overseas. Mr Lam’s immediate family all live in Australia. He has a large extended family who live in Vietnam. He is not close to any of his extended family, and there was apparently some difficulty in his relationship with his paternal uncles and aunt when he was a young boy. However, I think it reasonable to infer that the applicant would be able to obtain a measure of support from his extended family if he is obliged to return to Vietnam.
49. Another relevant consideration is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction). In this matter there is evidence of rehabilitation in that the applicant has not used heroin since his imprisonment in August 2000. There has been little opportunity for him to demonstrate recent good conduct because of his detention, and regrettably he has succumbed to the use of marijuana at least on several occasions while he has been in prison, and apparently also breached the prohibition against having a mobile phone. This consideration is therefore not in favour of the applicant.
50. The final consideration under this heading is that referred to in paragraph 2.17(k) of the Direction, namely that the applicant has been formally advised in the past by an officer of DIMIA about conduct which brought him within the cancellation provisions of s 501 of the Act. There is no evidence that the applicant received any warning from DIMIA prior to the conduct which gave rise to the cancellation of his visa.
51. In summary, my assessment of the other considerations, and in particular the disruption and hardship to the applicant’s family, would suggest that it would not be appropriate for the applicant to be removed from Australia. However, I also take into account that the applicant he has an extended family in Vietnam, he lived there until he was twenty-two, he has fallen in love with the sister of a fellow Vietnamese prisoner who lives in Vietnam, and he has no spouse or children in Australia. He recognises the mistakes he made as a result of becoming involved in illicit drugs, and the shame which this has brought to his family. If he is resolute, he would be in a position to make a new life with himself in Vietnam. Further, from the evidence given in these proceedings by Lan Mong Nguyen and John Bradsted, and from the information in Dr Chester’s report, it appears that support and assistance would be available through those persons, and through organisations to which those persons could refer the applicant’s immediate family, to assist them to overcome the grief and hardship which would follow from the applicant’s inability to remain in Australia. It is to be hoped that the applicant’s family take advantage of the opportunities available to them for appropriate assistance.
Conclusion
52. I have had careful regard to all of the considerations set out in the Direction. After considering all the evidence before me and balancing all of those considerations, I have decided that the first two primary considerations are strongly against the exercise of my discretion not to cancel the visa. Whilst I think that the ‘other considerations’ would on the whole point to an exercise of discretion in favour of not cancelling the visa, these considerations are not of sufficient weight to displace the adverse conclusion resulting from my evaluation of the first two primary considerations.
Decision
53. I affirm the decision under review.
I certify that the 53 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: ..................................................................................................................
J MacIntyre AssociateDate/s of Hearing 31 May and 1 June 2005
Date of Decision 8 June 2005
Counsel for the Applicant Mr P Winter
Solicitor for the Applicant Winters Solicitors
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent Australian Government Solicitor
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