Le and Minister for Immigration and Citizenship
[2009] AATA 544
•21 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 544
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2049
GENERAL ADMINISTRATIVE DIVISION )
Re Vinh Dac Le
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date21 July 2009
PlaceSydney
DecisionThe decision under review is affirmed.
………………[sgd]……………...
Ms N Isenberg
Senior Member
CATCHWORDS
IMMIGRATION – Visa cancellation – character test – Ministerial Direction – substantial criminal record – protection of the Australian community – whether person was minor upon arrival in Australia – length of time in Australia before criminal activity – international obligations – other considerations – armed robbery – decision affirmed.
Relevant Act
Migration Act 1958: ss 499 and 501
Citations
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81
Other Authorities
Direction No. 41
REASONS FOR DECISION
21 July 2009
Ms N Isenberg, Senior Member
Background
1. The Applicant is a 27 year-old citizen of Vietnam. He first arrived in Australia on 22 January 1998, at age 15, to reside with his brother and father who were permanent residents. Mr Le was granted permanent residence upon his arrival as the holder of a Class AH, Subclass 101 Child (Migrant) visa.
2. On 3 December 1998, Mr Le was convicted of aggravated indecent assault of a person under the age of 16 years for which he received a good behaviour bond. On 29 September 2000, Mr Le was convicted of take and drive a conveyance without the consent of the owner and received a sentence of six months imprisonment. On 12 April 2001, he was convicted of robbery armed with an offensive weapon and robbery in company (three counts) for which he was sentenced to four years and six months imprisonment with a non-parole period of two years and three months. He was also convicted of drive conveyance taken without consent of owner and sentenced to six months imprisonment.
3. On 12 August 2003, a Notice of Intention to Consider Cancellation (NOICC) was sent to Mr Le at Oberon Correctional Centre by the Department of Immigration and Citizenship.
4. On 22 June 2006, Mr Le was convicted of armed robbery and sentenced to six years with a four-year non-parole period.
5. Another NOICC was sent to Mr Le at Bathurst Correctional Centre by the Department on 2 July 2008. On 17 April 2009, a delegate of Minister decided to cancel Mr Le’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act1958 (“the Act”). Mr Le sought review of that decision on 11 May 2009 by application to this Tribunal.
6. At the hearing, Mr Le was self-represented, and the Respondent was represented by Ms Bronwyn McNeil. The documents before me comprised the documents produced pursuant to s 501G of the Act (“the G documents”), which were taken into evidence. Mr Le provided a written statement and gave oral evidence
Issues
7. The issues in this case are:
(a)Whether Mr Le satisfies the character test set out in s 501 of the Migration Act 1958; and
(b)If not, whether the Tribunal should exercise its discretion to cancel Mr Le’s visa.
Relevant Law and Policy
8. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test: s 501(2)(a) and (b). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (a) as follows:
…
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
9. “Substantial criminal record “, as defined in s 501(7), provides:
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…
10. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583..
11. On 3 June 2009, the Minister, exercising his powers under s 499(1) of the Act, issued Direction 41 - Visa Refusal and Cancellation under s 501 - which came into effect on 15 June 2009. The preamble to the Direction states that it “provides direction on the relevant factors that must be considered in making a decision under section 501 of the Act”. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
12. A signed statement from Mr Le was filed with the Tribunal on 11 May 2009, in which he says that he is aware of the serious mistakes that he has made and that he feels shame and regret as a result of his criminal conduct. He was struggling with life and fell in with the wrong crowd, but he no longer has any contact with these individuals. He had a drug problem but has overcome that whilst in prison. He has also completed courses to help him in the future and believes that he is a better person and no longer a risk to the community.
13. In August of 2008, Mr Le had sent a letter to the Department, presumably in response to the NOICC. In that letter, he states that he came to Australia in 1998 at a young age and considers it to be his home. He has lived and enjoyed the Australian way of life and all of his family and support people reside here.
Does mr le pass the character test?
14. The first issue for me to decide is whether, pursuant to ss 501(6)(a), the Applicant, Mr Le passes the character test.
15. The Direction sets out matters to which decision-makers should have regard in determining whether or not a visa holder is a person of good character and accordingly whether or not the person passes the character test.
16. I note Paragraph 7.1 of Part A to Direction 41, which specifies that a person does not pass the character test if the person has a substantial criminal record as defined in section 501(7) of the Act.
17. On 12 April 2001, Mr Le was convicted of armed robbery and robbery in company and was sentenced to a term of imprisonment of four years and six months with a non-parole period of two years and three months. On 22 June 2006, Mr Le was convicted of armed robbery and sentenced to a term of imprisonment of six years with a non-parole period of four years.
18. I find that Mr Le has a “substantial criminal record” as defined in subs 501(7) of the Act, as a consequence of the sentences he has received. Accordingly, he does not pass the character test.
Should i exercise my discretion in mr le’s favour?
19. Having decided that Mr Le does not pass the character test, I must consider whether or not to exercise the discretion in s 501(1) to cancel his visa. I am required to have regard to Part B of the Direction as a guide in exercising my discretion.
20. The Direction sets out four primary considerations:
(a)The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)Whether the person was a minor when they began living in Australia;
(c)The length of time the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)International obligations, including the best interests of the child, as described in the Convention on the Rights of the Child.
protection of the australian community from serious criminal or other harmful conduct, particularly crimes involving violence
21. Paragraph 10.1 of the Direction provides that factors relevant to assessing the level of risk to the community include:
(a)the seriousness and nature of the conduct; and
(b)the risk that the conduct may be repeated.
Seriousness and nature of the conduct
22. Paragraph 10.1.1(2) of the Direction provides examples of offences that are considered to be serious. Mr Le has twice been convicted of armed robbery, which is considered to be a serious offence under the Direction: paragraph 10.1.1(2)(e). Mr Le agreed that armed robbery is a serious offence.
23. I note that the sentencing judge in 2001 observed that the offences were serious offences and that the circumstances in which they were committed were “grave and appalling”. The sentencing judge in 2006 described the offences as “very serious”. Hughes J observed that “people, including vulnerable females coming home from work, ought to be able to use public transport without being robbed of their possessions in circumstances where the people are carrying a weapon”. He considered the objective seriousness of this crime to be towards the middle range of seriousness.
24. Paragraph 10.1.1(3) of the Direction states that “the sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community”. Mr Le was sentenced to a term of imprisonment of six years for the 2006 offences with a non-parole period of four years, which, to me, is indicative of his conduct being considered to be very serious in nature. Mr Le has multiple offences (including serious offences). The second armed robbery (in 2005) was carried out while Mr Le was on parole for the first.
25. I am also required to take into account any mitigating factors: paragraph 10.1.1(4)(b). Mr Le had claimed, as a mitigating factor, that he had problems with drugs and “was struggling” with his life and family and became “caught in the crowd with negative activity”. He stated that he does not have contact with these people anymore and that he has addressed his drug problems.
26. Mr Le told me that when he committed the offences in 2005 he “wasn’t thinking”. He had broken up with his girlfriend. He had left home and met up with old friends. He had been smoking heroin every few days for two weeks beforehand and needed money for more drugs. After that, he only used drugs, he said, until his arrest, a few weeks later.
27. As to the earlier armed robbery, he said he did “silly things” with friends and did it “for fun”. He said he only drove the getaway car.
28. In sentencing him in both 2001 and 2006, the judges accepted evidence from psychologists that Mr Le had been affected by his move to Australia and his reunion with a father he had not seen since he was six years old. It was accepted that his relationship with his father was not as close as he had hoped it would be and that he had felt “alienated”. He also had a difficult relationship with his stepmother who eventually returned to Vietnam. He told me that his father had been a heroin addict in Vietnam and that that was a likely reason for his parents’ break-up.
29. While I accept that there was evidence of some mitigating factors, these are not sufficient, in my view, to lessen the seriousness of the nature of his offences. I note that these mitigating factors had been taken into account on sentencing.
Risk that conduct may be repeated
30. A person's previous general conduct and total criminal history are particularly relevant to assessing any risk of re-offending: 10.1.2.
31. Mr Le has been, most recently, incarcerated for nearly four years. Obviously he has had, in that time, no further opportunity to re-offend: 10.1.2(a). I accept the Respondent’s submission that the conviction in 2006 should therefore be regarded as a “recent” conviction.
32. In respect of the term of imprisonment imposed in 2001, Mr Le was released on parole on 7 June 2004. His parole period did not expire until 7 September 2006; however, Mr Le was arrested on 1 August 2005 in respect of the subsequent armed robbery offence committed on 13 July 2005 and remained in prison until his sentencing on 22 June 2006.
33. Paragraph 10.1.2(b) states that the extent of rehabilitation already achieved and any prospect of further rehabilitation is relevant to this assessment. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment.
34. Mr Le has undertaken a number of educational courses during his current term of imprisonment. There is no evidence that he has undertaken any courses directed at drug use although the report from the Department of Corrective Services - Probation and Parole Services (“PPS”) dated 22 August 2008 notes that he “has been encouraged to seek a further assessment via an AOD worker as soon as possible”. This followed a statement by Mr Le that he no longer has issues associated with alcohol and other drugs. Mr Le told me that he has not used drugs since his arrest in August 2005.
35. The PPS report further notes that “Mr Le presents as a seemingly quiet and unassuming individual but the frequency of his offending appears to be associated with his illicit drug abuse problems”. This statement is at odds with Mr Le’s evidence that he used drugs only briefly and that he no longer uses them. On Mr Le’s evidence, notwithstanding that he had only used drugs for a couple of weeks, he was prepared to engage in armed robbery to get money to pay for drugs. In 2001, the sentencing judge accepted a psychologist's report that Mr Le did not have any drug problems. However, Mr Le’s NSW Department of Corrective Services records note that he was reprimanded for the offence of “use/possession of drugs” while in prison on 24 September 2000. This is also at odds with Mr Le’s evidence that he only commenced drug taking shortly before the 2005 armed robbery. Mr Le had told psychologists in relation to a parole assessment in December 2002 that the drugs had belonged to other inmates and that he “took the rap” for them.
36. He told me he had done a “drug course” when he was in gaol between 2000 and 2004. He agreed that it had not prevented him using drugs in 2005. He said he had again attempted to do a “drug course” while serving the current sentence, but because he had not been convicted of a drug-related offence, he was told, he said, “not to worry about [doing] it”.
37. The report from PPS further notes that during his latest period of incarceration Mr Le has had six breaches of prison discipline,, four of which are described only as “minor”. However, an offence of “assault inmate” occurred in June 2008 and resulted in Mr Le's reclassification from a “C1 minimum” classification to a “medium B” classification. He was previously involved in a fight with another inmate and produced a “shiv” (a sharp instrument or weapon). Mr Le said he had defended himself in a fight and that the shiv was located when his room was searched. No further information was to hand, but Mr Le did not deny that the shiv was his.
38. In 2001, the sentencing judge commented, erroneously, that “before the first of the series of offences [committed in August 2000] he had an unblemished character and reputation”. In a letter to the Department dated 15 August 2003 in relation to a previous NOICC, Mr Le stated “I had never previously come to the attention of the judicial system either as a juvenile or as an adult person”. Similarly, the psychologists stated, erroneously, in a report dated 20 December 2002 that “he has a nil history or prior offending”. Mr Le said the letter had been written by the prison psychologist but could not explain where the psychologist had obtained the information for the content of the letter. He said that he thought the letter was so he could receive a work release.
39. The sentencing judge in 2001 did not doubt Mr Le’s contrition and suspected that upon his release from prison he would have learnt his lesson. As it transpires, his Honour was overly optimistic.
40. Following his conviction, the sentencing judge in 2006 was also hopeful as to rehabilitation but was not satisfied that Mr Le had shown remorse. Mr Le told me that he thinks about what he has done every night and regrets what he did.
41. In Mr Le’s response dated 15 August 2003 to the NOICC of 13 August 2003, Mr Le wrote:
… the protection of the community is no longer an issue in my case. I acknowledge the seriousness of my conviction. I realise, regrettably too late for my victims and for my own family who have experienced a great shame, that I made a very big mistake in my life ... I affirm that I am a law respecting person and that my former conduct will never be repeated.
He went on to say:
... my own endeavours towards rehabilitation which have brought me to the present realisation regarding what I had been involved in. ... The Oberon Program has done much for me: to know where I have been, what I've have [sic] done, and what I must do in my life! ... I can only ask that I might be given the opportunity to prove myself to the Australian community and to my own family. I would not let you down.
…
42. Apparently, following Mr Le’s assurances, the s 501 process did not continue at that time. Subsequently, despite those assurances, Mr Le committed the further offences for which he is currently in prison.
43. In his letter of 27 August 2008, Mr Le wrote that he had “used drug in some occasion but [had] addressed that problem.” He also stated in that letter that he was “well aware about [his] behaviour in the past [and] have and still addressed [his] problems.” Finally, Mr Le wrote that “[a]ll I’m asking is for the Department of Immigration not to cancel my visa and for [it] to give me a chance in life. I will live a normal life and I’ll be a good citizen. I will not break the laws and I will obey the laws.”
44. With respect to paragraph 10.1.2(c) of the Direction relating to failure to abide by a Court order, I note that the most recent offence was committed while Mr Le was on parole. He had also only completed a good behaviour bond two months before he committed the armed robbery on 24 August 2000.
45. In conclusion, with respect to the risk that the conduct may be repeated, I note that in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198, the Full Federal Court held that a real risk of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk. I invited Mr Le to tell me why he thought he is unlikely to offend again. He said that he was immature when he committed the relevant offences although, as I observed, at the time of his last offence he was 23. Also, he said that he now thinks about things before he acts whereas previously he did not consider the consequences. He was reminded in cross-examination that, as recently as last year, while in gaol, he had been found guilty of assault. He said that in prison “you can’t walk away”.
46. The assurances Mr Le provided in his written statement and in his evidence to the effect that he will not offend again are in almost identical terms to those he gave when visa cancellation was first considered by the Department in 2003. That he subsequently re-offended makes those assurances hollow. I am therefore sceptical about his present assurances.
47. Taking into account that Mr Le’s long history of offending, commencing at age 16 and including the commission of further serious offences while on parole, and his previous disingenuous assertion that he would not re-offend, I consider there is a real risk of Mr Le committing further serious offences.
48. Further, in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81 at n133 stated:
… The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again. ... And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
…
49. I find that the likelihood of Mr Le re-offending is reasonably high and I consider it a strong factor in considering the exercise of the discretion.
Was the applicant a minor when he began living in Australia?
50. Paragraph 10.2(1) refers to the favourable consideration to be given to a person who enters Australia as a minor, spending their formative years in Australia and establishing ties with the Australian community but less weight is given to this consideration if the person was close to attaining adulthood when they arrived in Australia, i.e. between 17 and 18 years of age: paragraph 10.2(2).
51. Mr Le was aged 15 when he first came to Australia, and I accept that some of his “formative” years were in Australia.
52. Having said that though, Mr Le committed his first offence only eight months after arriving in Australia while he was still a minor. Details of the offence are unclear. Mr Le told me a child was left in his care and he was “mucking around” and “the next thing [he] knew” he was charged with an offence: aggravated indecent assault of a person under 16. He agreed he had participated in a Record of Interview with the assistance of a Vietnamese interpreter. Presumably he made admissions. He “didn’t speak a word of English” so did not know what occurred at the hearing, but the record shows he was given a good behaviour bond until the age of 18 and ordered not to contact the victim.
53. Mr Le's first armed robbery offence was committed, about two years later, shortly after he turned 18 years of age.
54. I do not consider that, in the circumstances, much weight should be given to this primary consideration.
What was the length of the applicant’s ordinary residence in australia prior to engaging in criminal activity?
55. Paragraph 10.3 of the Direction notes that the longer the period of residence in Australia, the greater the likelihood of significant ties to the Australian community and therefore, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character. The Direction states that it is the time spent ordinarily resident in Australia prior [emphasis added] to engaging in criminal or negative activity that is important in this consideration.
56. Mr Le was convicted of an offence as a minor only eight months after his arrival in Australia. At the age of 18 years, he committed an offence of armed robbery. He has spent the vast majority of his adult life in prison; in the remaining time Mr Le has not had the opportunity to form significant ties with the Australian community. In his statement, Mr Le professed an interest in various Australian sporting teams. This does not amount to a significant community tie. He gave evidence that his only close associate is his brother.
57. Because of the short period of time that Mr Le was resident in Australia before committing his first offence, I give this consideration little weight.
International obligations, including best interests of the child
58. There do not appear to be any relevant international obligations which arise in this matter. Mr Le does not claim to have any children to whom this consideration would apply, nor has he made any claims which require assessment in relation to international obligations.
Other Considerations
59. Paragraph 11 of the Direction allows for other matters to be taken into account but on the basis that they generally be given less weight than the primary considerations. Those relevant with respect to Mr Le include:
60. Family ties, the nature and extent of any relationships: Mr Le has never been married or in a de facto relationship.
61. He initially lived with his father and brother who are said to now be Australian citizens. He is estranged from his father and they have not spoken for four years.
62. His brother is his only close relative but he does not visit him in gaol because it is too far for his brother to travel to Bathurst and he works six days a week. They do, however, speak by telephone on a fortnightly basis. He said his brother does wedding photography, and agreed that this work was mainly carried out on weekends. He did not know what his brother’s main line of work is. He said he intends to live with his brother upon his release from prison, and that PPS have approved that. His brother has not been in trouble with the police. No statement was provided by his brother, and he did not attend the hearing to provide support to Mr Le. Mr Le said his brother is shortly to marry and he did not want to worry him. It seems that it did not occur to him to inform his brother of his immigration problems.
I consider the depth of the relationship to be somewhat doubtful in light of the minimal amount of information that Mr Le was able to provide about his brother and taking into consideration the questionable extent to which his brother is aware of Mr Le’s current immigration status.63. Mr Le reported a good relationship with his mother and stepfather before he came to Australia. Mr Le's mother still resides in Vietnam. Mr Le said he has not told her of his prison sentence and he is not in contact with her or any other relatives who have remained in Vietnam.
64. The person's age: Mr Le is now aged 27 years. He is neither elderly nor a young person requiring adult care.
65. Links to the country to which they would be removed: Mr Le left Vietnam when he was 15 years old. Vietnamese is his first language. In 2000, he visited Vietnam on holiday for five weeks. Apart from his time in prison, he mostly resided in Australia with his father and brother who, it may be assumed, both also spoke Vietnamese.
66. Mr Le’s mother still resides in Vietnam, as does his maternal grandmother along with several aunts and a stepsister. He professes to be close to his mother but she does not know that he is in gaol.
67. Hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia: Mr Le had spent the majority of his formative years in Vietnam.
68. There is no evidence that Mr Le would suffer particular hardship if he were to return to Vietnam, although he said he has no idea who he would stay with or what he would do.
69. He may have some difficulty obtaining employment, but it is unknown how his Australian criminal record might affect his prospects. He speaks good English and has undertaken some computer training and forklift driving while in gaol, and it may be that his employment prospects will be enhanced by these skills.
70. There was no clear evidence that Mr Le would experience hardship should he return to Vietnam.
71. Mr Le has not spoken to his father, he said, for four years, so it is unlikely he would be affected by his son’s departure.
72. It is possible that Mr Le’s brother may suffer some distress as a result of Mr Le's removal, but there was no evidence from him one way or the other. He may be disappointed if Mr Le is not available to assist him in his work in wedding photography, but there was no evidence to state his position any higher. Additionally, the oral evidence given by Mr Le during the hearing and, as noted under the “Visits” heading of the PPS Report, indicate that the actual nature of the relationship does not go beyond a series of intermittent telephone calls between the siblings.
73. There was no evidence of hardship to immediate family members in Australia.
74. Level of education: Mr Le said he was educated in Vietnam to the equivalent of Year 7. He had about two years schooling in Australia, completing Year 10. While in prison, Mr Le has undertaken a number of vocational courses such as a computer course and forklift driving. This may be considered in Mr Le's favour as it may increase his capacity to positively contribute to the Australia community through employment. However, apart from part-time work with his brother, Mr Le had no idea what work he might undertake. Mr Le said that on his release from gaol in 2005, he had looked for work, without success, for four months and had “given up”.
75. Whether the person has been formally advised in the past by the Department about conduct that brought the person within the deportation provisions of the Act or the character provisions of the Act: Mr Le was previously informed by the Department that his visa was being considered for cancellation as a result of his first conviction for armed robbery in 2001. Despite this notification and his assurances at the time that he would not re-offend, Mr Le was convicted again for armed robbery in 2006.
76. Because Mr Le had been warned that his conduct was unacceptable and that his visa may be cancelled, I consider this as an important factor in taking other considerations into account, as provided for in paragraph 11 of the Direction.
77. On balance, the other considerations, when taken together, weigh in favour of cancelling the visa.
Conclusion
78. Mr Le does not pass the character test as a result of his substantial criminal record. The primary considerations, especially the protection and expectations of the Australian community, outweigh any other considerations. The discretion in s 501 of the Act should not be exercised in Mr Le’s favour.
Decision
79. The decision under review is affirmed.
I certify that the seventy-nine (79) preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ..................................[sgd].......................................
AssociateDate/s of Hearing: 9 July 2009
Date of Decision: 21 July 2009
Appearance for the Applicant: Self-represented
Solicitor for the Respondent: Bronwyn McNeil, Clayton Utz
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