Le and Minister for Immigration and Multicultural Affairs - [2000] AATA 283

DECISION AND REASONS FOR DECISION [2000] AATA 283

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/959

GENERAL DIVISION         )
           Re      Hui Le
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Justice O'Connor, President

Date13 March 2000
PlaceSydney

Decision      The decision under review is AFFIRMED.
  ..............................................
  President
CATCHWORDS
IMMIGRATION & CITIZENSHIP- criminal deportation – applicant convicted of armed robbery – reference to community standard – hardship to applicant's family and de facto -

REASONS FOR (EX TEMPORE) DECISION

13 March 2000 Justice O'Connor, President

This is an application by Mr Hui Le to review a decision of the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") made pursuant to section 200 of the Migration Act 1958 (Cth) ("the Act") to deport the applicant, Mr Le from Australia. Section 500(1)(a) of the Act grants the Tribunal jurisdiction to review the Minister's decision. Section 200 of the Act is in the following terms:
The Minister may order the deportation of a non-citizen to whom this section applies.

Section 200 applies where, under s 201,

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b) when the offence was committed the person was a non-citizen who:

had been in Australia as a permanent resident:

(A)for a period of less than ten years; or
(B)for periods that, when added together, total less than ten years

(c) the offence is an offence for which the person was sentenced to death or imprisonment for life or for a period of not less than one year.

The respondent claims, and there is no argument about this issue, that the applicant is potentially liable for deportation under s 201 of the Act on the basis of two offences. The first is that on 19 February 1990, the applicant committed armed robbery at a residence in the company of seven people. It is referred to in the rest of these reasons as the first deportable offence. As a result, he was convicted of this offence on 25 March 1991 and sentenced to a minimum term of six years imprisonment and an additional term of two years.
On 7 September 1997, the applicant was caught with an unlicensed, loaded firearm in his possession and he was convicted of this offence on 5 June 1998 and was sentenced to a minimum term of twelve months' imprisonment, with an additional term of six months. This is referred to as the second deportable offence.
Factual Background
Mr Le, the applicant, was born in Vietnam on 14 January 1970. The applicant left Vietnam in 1985 and resided in a refugee camp in Thailand for approximately three years. On 13 July 1988, he arrived in Australia as an 18 year old male, under the Indo-Chinese refugee program, and has not left Australia since that date. Approximately six months after arriving in Australia under this program, he was charged with his first criminal offence and convicted on 1 March 1989. The applicant has a history of criminal convictions in Australia from that date. On 19 February 1990, as I mentioned above, the applicant was involved in an armed robbery of a residence. This crime is often called home invasion. He was in the company of seven people.
The applicant's parents and remaining siblings arrived in Australia in 1991. They have since then become Australian citizens. On 29 January 1995, the applicant was interviewed by a departmental officer regarding his liability for deportation, because of the first deportable offence. On 18 February 1995, the Department of Immigration and Multicultural Affairs made the decision that the applicant would not be deported, but instead be issued with a warning.
In February 1996 the applicant was released from prison on parole. In mid-1996 the applicant commenced a relationship with Thi Kim Thu Dinh, who was at that time living as a single mother with a two month old dependent child. The applicant and Miss Dinh lived together between mid 1996 and the time the applicant's parole was revoked in 1997. After his release from gaol, the applicant became a user of heroin.
A second deportable offence occurred on 7 September 1997, when the applicant was found with an unlicensed loaded firearm in his possession. Following this offence, the applicant's parole was revoked, and on 5 June 1998 he was convicted and sentenced to a minimum of 12 months imprisonment, with an additional term of six months. On 28 January 1999, the applicant was again interviewed by a departmental officer, regarding his liability for deportation.
In May 1999, the applicant was released from prison on parole. He resumed living with Miss Dinh, and continued to use heroin. On 19 May 1999 a deportation order against the applicant was signed; on 4 June 1999 the order was served on the applicant. On 25 June 1999, the applicant lodged application for review of the order with this Tribunal.
Framework in which the decision must be made
On 21 December 1998 the Minister for Immigration issued General Direction – Criminal Deportation – No 9, referred to as "The Policy Document", and this was issued under section 499 of the Act. The policy provides guidance to those making deportation decisions under section 200 and 201 of the Act. The policy states that there are two primary considerations in reaching a decision whether or not to deport a potential deportee in addition to a number of other factors. These are firstly the expectations of the Australian community and secondly, the best interests of a child or children involved in a parent/child relationship with the potential deportee. Other non-primary considerations that will be relevant to a decision to deport are the degree of hardship which may be reasonably expected to be suffered by the potential deportee and the degree of hardship to Australian citizens that would reasonably be expected to flow from deportation.
I first deal with community expectations. Under the umbrella of community expectations, the policy sets out a number of considerations for those making a decision. These include protection of the Australian community, the seriousness and nature of the offence, the risk of recidivism, the likelihood that deportation of the potential deportee would prevent or inhibit the commission of like offences by other persons, and the community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the Australian community.
Paragraph 8 of the deportation policy reads as follows:
"The expectation is that the community will be protected and not put at risk and the expectation is that non citizens who commit and are convicted of crimes that are abhorrent to the Australian community will be removed from Australia."

Paragraph 9 explains that the Australian community expects the government to protect it from the actions of criminals and to take action to remove unacceptable levels of risks of crime. As I said before, the policy describes the factors that ought to be taken into account in assessing the level of risk to the community, and its need for protection. These include the seriousness and the nature of the crime, the risk of recidivism and the likelihood that deportation of this person would act as a deterrent to others.
Submissions
The respondent claims that the applicant's first deportable offence of armed robbery falls within two categories of crime listed in the deportation policy as being of a very serious nature. At paragraph 11, a number of offences are listed, including at d) armed robbery, including robbery involving the use of imitation weapons, and at l) any other crimes involving violence or the threat of violence.
A police report dated 24 August 1991 provides brief details of the offence. It says, and I quote:
"Le and seven co-offenders armed with a sawn-off loaded .22 rifle, a replica pistol and machetes, broke into the residence of an Asian family. They then bound and gagged the four occupants, three females and a 15 year old boy, at gunpoint, before robbing them of $10,000 in cash, jewellery and electrical goods."

The applicant's conduct was also a crime against children, which is referred to under paragraph 11(k) of the deportation policy, because, as I have just stated, one of the applicant's victims was a 15 year old boy.
On behalf of the applicant, the submissions before me today in dealing with this first deportable offence, drew my attention to the transcript of evidence that was given before the Tribunal in relation to this matter.
Before I proceed to state what was put to me today, I would like as a general matter to make the following comment. Because of the circumstances of this case and the particular fact that I have not had the opportunity to see and hear the witnesses, whose evidence is contained in the transcript, I have given great weight to the evidence put at its highest, presented on the applicant's behalf.
As I said, what was put on the applicant's behalf in relation to the first deportable offence, relying primarily on the applicant's evidence, was that he was persuaded by others to participate in the robbery, for which he went to gaol. His involvement was spontaneous, rather than planned. He was affected by alcohol and had taken the drug Rohypnol for the first time and he claimed that impaired his judgment. He said he did not carry a weapon during the robbery. He did not know until he arrived at the scene of the crime that weapons were to be used, and he was arrested by the police a few days after the robbery, following which he confessed to his involvement and he said he told all the truth about it.
It was put that this evidence is consistent with a reference by the sentencing judge in the District Court to admissions as to his conduct in the record of interview, and before the AAT, when he gave evidence, the applicant continued to acknowledge responsibility for the crime and showed remorse in respect of the robbery. The counsel for the applicant is quite happy to rely upon the description of his client at that time as immature, easily led and not as bright as his co-defendants. He pleaded guilty to the offence. The applicant, however, does not deny that the judge in relation to the first offence, came to the view that all of the participants were equally to blame and there appears to have been no account taken of the limited role of this applicant in the crime, judging by the remarks of the sentencing judge and the sentence in fact imposed.
The respondent's submission is that this is a serious crime and it would be one that is abhorrent to the Australian community. It would be difficult not to characterise a crime which involved the forced entry into a domestic home, threats of violence and the use of weapons whether by a particular perpetrator, or others, as not being something which a person in the Australian community would regard as an abhorrent crime, and I will deal with that later in these reasons, to come to the view that the potential for such a crime to occur would create a risk to the Australian population, then I would, I think, take the view that it was an unacceptable risk.
The applicant's second deportable offence was his conviction for possession of an unlicensed firearm. That firearm contained bullets at the time. When sentencing the applicant for this offence, Ford J described the applicant's conduct as a serious offence. The applicant claims he was carrying the weapon to defend himself against the persons with whom he had committed the home invasion offence and that he was not using, threatening to use, or intending to use the weapon at the time it was found. No explanation, as far as I can judge, was given as to why he saw it necessary to arm himself against these people.
Another factor that must be taken into account in deciding whether a person is to be deported, is the risk of recidivism. Paragraph 13 of the Deportation Policy states that factors relevant to that assessment include that the person commits a further offence after having been warned previously about the risk of deportation. Such persons, the paragraph says, should expect that the warning would be given sufficient weight in consideration of his or her case. A person with several previous convictions in Australia, should be considered as an increased risk in the light of the past behaviour. In cases where there is a gap, or gap between convictions, the inference may be open that the potential deportee has demonstrated that as a substantial period since the early conviction has passed, it is not a reliable indicator that further offences will not be committed.
The extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonable be expected to make, must all be taken into account. This applicant, as I have stated, has a history of criminal convictions in Australia, dating back to 1989. After serving a lengthy term of imprisonment for his first deportable offence, and being warned of his liability for deportation, the applicant committed his second deportable offence in 1997.
After having been charged with that offence, he was again convicted on 10 February 1998 of driving with a cancelled licence and sentenced to six months imprisonment. This term was served concurrently with the sentence for the second deportable offence. The respondent, not surprisingly, has submitted that this behaviour falls within paragraph 13A and D, as I've cited above, and demonstrates the applicant's high risk of recidivism.
The applicant's counsel has accepted that the applicant has committed a further deportable offence, despite having been warned. However, he submits that the applicant's risk of recidivism is now low, for a number of reasons. He says that the applicant is in a stable relation with Miss Dinh and Miss Dinh's child, Thien. The relationship is likely to continue and the relationship has had a positive effect on the applicant and he relies on a number of passages of evidence to support that proposition. He submits that in relation to the first deportable offence, the applicant's mind was affected by alcohol and the drug Rohypnol, and in relation to the second deportable offence, the applicant's mind was also affected by alcohol and heroin. The evidence is that since coming out of gaol in May 1997, the applicant has made genuine attempts to overcome his heroin addiction and stop drinking. That is, since September 1999, the evidence is that the applicant has not been using heroin.
The applicant's counsel submits that the offences before 1991 were committed when he had a weak family support network in Australia and he was living on the streets. His parents and most of his siblings had not yet come to Australia, but his family support network is now strong, because they are here. Counsel submitted that in 1990 the applicant was immature and is no longer immature. As the applicant stated in cross-examination "I'm getting older, yes and I would be more mature, I would say. It won't do me any good, if I keep on getting into trouble. Now, I settled and I've got a girlfriend."
The applicant relies on the fact that he hasn't committed any offences since he was released from prison in May 1999. There is also evidence that the applicant is making genuine attempts to obtain employment in Melbourne and in the light of all of the above, the applicant submits that his involvement in the February 1990 armed robbery was out of character.
As the respondent points out, however, the applicant's criminal history since 1989 shows a clear pattern of persistent re-offending. The offences from 1989 to 1990 were a series of minor ones until the armed robbery in company offence on 19 February 1990. It is, in my view, significant that a substantial prison term for that offence and the warning of possible deportation given on 18 February 1995, did not deter this applicant from committing the firearm offence in 1997 while on parole, nor the subsequent traffic offences. In fact, it is the applicant's evidence, that after leaving prison, after having served his sentence for the armed robbery offence, he became a heroin addict and this happened, of course, while at the same time in a domestic relationship with Miss Dinh and her daughter. None of those matters, (which are of course, the matters that the applicant currently relies on), appeared to act as a deterrent in the period between 1997 until the commission of the second deportable offence. The respondent submits that there is a strong link between this applicant's use of alcohol and illicit drugs and his criminal offences. As stated previously this applicant concedes he has been using heroin since 1996 and has ceased to do so since September 1999. However, his own evidence is he has failed to seek any additional drug rehabilitation after one attempted drug rehabilitation failed and he has rejected methadone treatment to address his problem.
His evidence in relation to the matter of drugs is that he hopes and wishes that he will not continue to use such addictive substances. The respondent says that the applicant has so far failed to achieve any drug rehabilitation and his prospects for doing so in the future are tenuous at best and invites me to form the view that this applicant continues to display a high risk of recidivism which is referred to under the policy. In relation to the deterrent effect of deportation the respondent submits that the applicant's deportation will deter other non-citizens from committing violent home invasion offences, pursuant to paragraph 14(a) of the policy. The applicant in response to that relies upon the fact that on the applicant's version the first deportable offence was spontaneous and unplanned and in relation to the second it would only have a minimal deterrent effect on the commission of a like offence by other persons.
In relation to the first deportable offence the effect on the applicant seems to be relevant to the question of deterrence and I am not convinced that these two matters are necessarily linked. In relation to the question of whether the crimes committed by the applicant were abhorrent it is somewhat surprisingly submitted by the applicant that the armed robbery, while a very serious offence, should not be regarded as abhorrent because of the circumstances in which it occurred which were the mind of the applicant and the fact that as he said, he did not understand until he reached the house what in fact was going to happen. That in my view would not be the view of the people who were in the house at the time of the offence and the conduct of the applicant, whatever he may have thought about it, was, in my view, abhorrent conduct.
I do accept that the September 1997 offence was not on its face an abhorrent crime but the other factor in terms of the risk created by persons like the applicant carrying loaded guns to the Australian community has been taken into account.
The other primary factor that I must have regard to is the best interests of the child, the daughter of Ms Dinh. The applicant, while not the child's natural father, currently has a relationship with this three year old, the daughter of Ms Dinh. The applicant began a relationship with the child's mother two months after the birth and lived with the child as a family until he was gaoled in 1997. In this first period, on the applicant's evidence, he was a heroin addict and in possession of a firearm which he stored in the house in which they lived.
Since his release from jail on the firearm offence he has resumed living with the mother and the child and on the evidence of the applicant and the mother, he has a good relationship with her. The child's primary carer is however her mother and I so find. She gave evidence that she has a family support network in Melbourne who would assist her if she had sole care of the child. She said in evidence that she did not know what effect the applicant's deportation would have on the child because she is too young. The applicant has never contributed to the financial support of the child. In fact the evidence is that the applicant, apart from some eight to nine months work while in Australia, has never financially supported himself or anyone else.

During this child's life (she is currently three years old), he has been absent for considerable periods and has, when in the home for substantial periods, lived a drug dependent life. I do not consider that this child's emotional and psychological dependency on the applicant is crucial to her wellbeing and I am confident that the existing family support system available to the mother will prevent any long term damage to the child. I must have regard to the effect of deportation, not only on the applicant, but on the applicant's family, the mother and the siblings. Neither the applicant's mother nor the applicant's siblings gave any evidence to the Tribunal as to hardship to themselves if the applicant were deported.
However, the applicant's father said that he and his family would be affected by a degree of hardship by the deportation of this applicant. They were very concerned for the applicant's welfare. I have concluded that there would be, and so find, a degree of hardship for these people created by the deportation of the applicant. I accept that they are a close family and the mother in particular would have suffered a high degree of pain and anguish relating to her son's behaviour and, if deported, her separation from him. I do not however consider that this hardship outweighs the other matters to which I must give consideration. In relation to hardship to the applicant himself I have been provided with some evidence in the form of country information by the respondent in relation to the current situation in Vietnam.
The applicant's father had given, and I accept it, evidence as to the situation in Vietnam just prior to him leaving to come to Australia, but the material tendered by the respondent is of much more recent character and supports the submission that the situation in Vietnam in relation to the economy, the prospect of support for drug dependency and the likelihood of work has improved since the applicant was there. I have taken into account that the applicant has not lived in Vietnam for 14 years and will experience some hardship if he is deported, but he is a healthy young man, he speaks fluent Vietnamese and some English and he is, in my view, not likely to suffer any degree of hardship which would mitigate against deportation, taking into account the other factors to which I have had to have regard.
In relation to the fact that the applicant was a refugee the applicant does not contend that there is any impediment to deportation created by that fact other than the risk that the applicant would be conscripted to military service on his return. The Department of Foreign Affairs and Trade in a 1992 report submitted in evidence states that the standard requirement is that all men between 18 and 27 are conscripted for two years military service. The applicant is now 30. The respondent says he is outside the age in which he suffers that risk. The applicant's counsel said this risk still exists and I have taken that into account.
Decision
I make the following findings. This applicant represents an unacceptable risk to the Australian community should he be allowed to stay in this country. I do not accept that there is a low risk of recidivism and although I accept as true the current situation that this applicant is in a relationship with a dependent child and wishes to be free of drug dependence and crime, in my view the existence of that relationship and an opportunity to live in Australia drug free and without crime was given to the applicant after his first deportable offence. He did not take that opportunity.
I accept the submission of the respondent that if the fear of deportation, or risk of deportation, was removed by giving another chance, then it would be highly likely that the behaviour would be repeated. The applicant, in fact, after the first deportable offence in fact increased his use of hard drugs and did not improve the quality of his life nor his commitment to his de facto wife and the child.
It is a matter of some concern to me that Miss Dinh and this child, as a result of the applicant's deportation, will be separated from him and I have taken the effect of that very seriously into account. But I do not think that, as I have already said in this set of reasons that the affect of deportation on this child would have a serious and continuing affect and I rely particularly on the fact that Miss Dinh gave evidence of a family support network in Melbourne which she said would be available to the child.
I have balanced all of the considerations which are required of me in the Minister's policy. I have read the transcript of evidence and as I said previously, I have given great weight to the evidence of the applicant and those witnesses called on his behalf. I make no negative findings in respect of any of this evidence, but it leaves me in the position that even taking this evidence at its highest, the correct and preferable decision in this case is to affirm the deportation order and I so do.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Justice O'Connor, President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 March 2000
Date of Decision  13 March 2000
Counsel for the Applicant        Mr B Zipser
Solicitor for the Applicant         D T Dao & Co, Solicitors
Counsel for the Respondent    Mr J Fong
Solicitor for the Respondent    Department of Immigration & Multicultural Affairs