Le and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 504
•1 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 504
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/317
GENERAL ADMINISTRATIVE DIVISION ) Re Tuan Anh Le Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date1 June 2005
PlaceSydney
Decision The decision under review is set aside and the matter is remitted for reconsideration on the basis that the discretion should be exercised in favour of not cancelling the applicant’s visa.
..............................................
(Sgd) Professor GD Walker
Deputy President
CATCHWORDS
VISAEX – on-shore visa cancellation – substantial criminal record – applicant’s visa cancelled on the grounds of his substantial criminal record and past and present criminal conduct – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant is returned to his country of origin – examination of the applicant’s criminal record, family situation – found
Migration Act 1958 ss 499, 501(2), 502(7)
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
1 June 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Tuan Anh Le, who is aged 25 and a citizen of Vietnam, first came to Australia on 7 July 1996 as the holder of a subclass BF101 child visa. On 1 May 2003, he was granted a resident return (five years) visa.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, found that the applicant did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 (“the Act”) because of his substantial criminal record in Australia including robbery in company and because of his past and present criminal conduct. The respondent therefore cancelled the applicant’s resident return visa. This is the decision to be reviewed by the tribunal.
Background
3. Mr Le was born in Haiphong, Vietnam on 17 November 1979 and is aged 25. He is a citizen of Vietnam. He first arrived in Australia on 7 July 1996 as the holder of a subclass BF101 child visa. He departed Australia on 23 March 1997, returning again on 11 May 1997 (at the age of 18). Within a year of his return to Australia, Mr Le (using the alias of Hung Anh Lu) was convicted of the following criminal offences:
Charge Date
Court
Offence
Sentence
30/6/1998
Sydney District Court
1/Robbery in company
2/ Common Assault
Minimum term 2 years commencing 30/6/1998 concluding 29/6/2000 additional term 3 years commencing 30/6/2000 concluding 29/6/2003 (the Court of Criminal Appeal summarily dismissed a severity appeal on 23/7/1999.
2/ Taken into account on form 1.
17/1/2003
Waverley Local Court
1/Unlicensed driver/rider (never licensed)
2/Driver/rider state false name or address
1/Fined $400, court costs $59.
2/ Fined $100
4. On 11 August 2000 Mr Le was released from prison on parole. According to the G documents, on 29 August 2002, Mr Le’s parole order was revoked by the New South Wales Parole Board and he was ordered to serve the balance of his parole of 11 months and five days. He was taken into custody on the same day. Mr Le was released on 1 March 2003 and he completed his parole period on 31 December 2003.
5. Mr Le had the following convictions recorded against him while imprisoned:
Hearing date Offence and sentence
17/2/2003 Fail to comply with correctional centre routine – 7 days
off buy-ups
18/9/1998 Unauthorised property – 3 days cells
29/8/1998 Not comply with prison officer – 1 day cells
6. On 1 May 2003, Mr Le was granted a subclass S155 (five year resident return) visa.
7. On 21 October 2003, a delegate of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) informed Mr Le that the Minister for his delegate was considering cancelling his resident return visa because of his substantial criminal record and his past and present criminal conduct and inviting him to comment by 11 November 2003 (G p29). She also informed him in that making the decision, the Minister or his delegate would be taking into account his criminal history including convictions and sentences and the sentencing comments of Judge Viney made on 15 October 1998 in relation to the robbery in company conviction. Mr Le acknowledged receipt of this warning on 1 November 2003 (G p34). Mr Le made written submissions to the department on 1 November 2003 (G p35). In that letter, he stated that at the time of the robbery he was easily influenced by his friends and that he did not know any better and that was a major cause of his criminal behaviour, however he had learned from his mistakes and was ashamed of his actions and since being released from prison had started a new life which included studying, working and that he was now in a personal relationship. He is now engaged to be married.
8. Written submissions were also received on the applicant’s behalf from Thi Anh Phuong Nguyen (Anne Nguyen), Mr Le’s fiancée (G p36); David Truong, a friend and the managing director of Infinium Tech Pty Ltd, a company where the applicant was working part-time on a voluntary basis (G p38); Loren Karam, a neighbour of Mr Le’s girlfriend (G p40), Trang Luc, a friend of the applicant (G p42); and Kim Nguyen, the sister of Mr Le’s fiancée (G p43).
9. On 6 August 2004, a delegate of the department informed Mr Le that she was allowing him a further period until 20 August 2004 in which to make submissions before a final decision would be made (G p45). The applicant acknowledged receipt of this letter on 9 August 2004 (G p47). By letter received by the department on 23 August 2004, Mr Le submitted that he had been assisting to care for his girlfriend’s father who was recovering from back surgery, he attended training with Infinium Tech Pty Ltd whenever he found the opportunity, and that he was now working as a waiter at Hoang My Restaurant in Marrickville (G p48).
10. On 6 September 2004, a delegate of the respondent decided to cancel Mr Le’s resident return visa because of his substantial criminal record and past and present criminal conduct and because of the continuing risk that he would re-offend and having exercised her discretion under s 501(2) of the Act to cancel his visa (G1).
11. On 5 March 2005, Mr Le was detained at the Villawood Detention Centre, New South Wales, after being located by the police. The decision was served on Mr Le on 14 March 2005 and on 16 March 2005 Mr Le lodged an application for a review of this decision by the tribunal.
12. At the hearing, the applicant was represented by John Overall, of counsel, instructed by Slattery Thompson, solicitors, and the respondent was represented by Avenish Chand, solicitor, of Clayton Utz solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Oral evidence was given in person by Mr Le, Thi Anh Phuong Nguyen (known as Anne Nguyen), Thi Man Vu, Huu An Nguyen and Thi Kim Dung Ha.
Relevant Law and Policy
13. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(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 grounds in the current matter are s 501(6)(a) and s 501(6)(c)(i). Section 501(6)(a) provides:
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));
…
”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more” (c) or “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” (d).
14. Section 501(6)(c)(i) states:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct
…
the person is not of good character; …
15. Under s 499(1) of the Act, the Minister may give 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. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
16. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the 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.
Issue
17. In the present case, Tuan Anh Le does not pass the character test because of his “substantial criminal record”, having received on 15 October 1998, a minimum term of two years with an additional term of three years for robbery in company. He was released on parole on 11 August 2000 but on 29 August 2002 was readmitted to prison to serve his additional sentence for breach of his bail conditions. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(2) not to cancel Mr Le’s visa.
Evidence
18. The applicant gave oral evidence with the assistance of a Vietnamese interpreter. As he admitted his criminal history (G5), the evidence related only to the exercise of the discretion under s 501(2).
19. A statement from Mr Le’s fiancée, Thi Anh Phuong Nguyen (known as Anne Nguyen) dated 6 May 2005 was also taken into evidence (Exhibit A6). Ms Nguyen is not an Australian citizen. In her statement Ms Nguyen stated that she and Mr Le have been living in a de facto relationship since September 2002 and have made arrangements to marry on Saturday 9 July 2005. If Mr Le is deported she would not go to Vietnam to live with him and this would cause her great distress and unbearable hardship because she would be losing the man she loves and wants to have a family with. A statement dated 6 May 2005 was also accepted into evidence from Thi Man Vu, Mr Le’s mother (Exhibit A9). In her statement, she said that Mr Le did not get along with his step-father because her son lacked motivation to succeed in life but that this had now changed: “He is a man and not a boy. He is motivated to work and learn and become a good citizen of Australia. The term in prison and his relationship with his fiancée has fully rehabilitated him from his former life of crime”.
20. Statements were also received into evidence from Huu An Nguyen, the father of Anne Nguyen (Exhibit A7) and Thi Kim Dung Ha, the mother of Anne Nguyen (Exhibit A8) stating that they had an excellent relationship with Mr Le, that he had assisted their family and in particular Mr Nguyen when he was recovering from back surgery and that the family would suffer great distress if he were deported.
21. A psychological assessment report by John Jacmon OAM dated 9 May 2005 was also tendered on behalf of the applicant (Exhibit A4). The assessment was made after interviewing the applicant and administering a Personality Assessment Inventory personality test, which provides general information about the personality and clinical syndromes from which a person might suffer. In essence, Mr Jacmon found that the applicant was suffering from symptoms of anxiety and depression but concluded “Symptoms of anxiety and depression probably result from his current legal situation and apprehension over a possible negative outcome rather than a deep-seated disorder” (Exhibit A4 p8). Mr Jacmon concluded:
Mr Le’s circumstances are those of an individual who in his late teens deviated from a lawful path but has since returned. The assessment and the documentation do not reveal any triggers to potential offending behaviour. Nonetheless if his application to remain in Australia is granted it is recommended that he attends counselling sessions with a psychologist monthly for the next 12 months. The purpose of counselling would be to ensure that he has the opportunity to address any behavioural tendencies that may trouble him in the more immediate future.
22. In his oral evidence Mr Le related how his mother had come to Australia from Vietnam when he was about ten years old, leaving him in Vietnam in the care of his father and grandmother. The sentencing judge noted that he appeared to have had a happy life there. His relationship with his grandparents was good and his life revolved around school, friends and sport. There was no suggestion of juvenile delinquency or drug or alcohol abuse. In due course his mother applied for him to join her in Australia.
23. When he 16 he came to Australia, but left Vietnam with considerable regret, losing contact with his friends and his grandparents (G p51). Having been separated from his mother for so long, he found that he had to make considerable adaptations in order to establish a normal relationship with her. In retrospect, especially, it was clearly not a good time to be uprooted from his accustomed surroundings in Vietnam. He was too old to learn without great difficulty a completely new language to the level that would be needed for tertiary level trade training or academic education. But he was much too young to be content to spend the rest of his working life in unskilled and low-paid occupations.
24. He attended Beverly Hills Special English school, leaving at the age of 17 and a half, then enrolled part-time at Bankstown TAFE in English, Mathematics and Computers. At that time, however, his relationship with his stepfather was very strained. He says it was because his stepfather had a child of his own and paid little attention to his stepson, but Mr Le’s mother says it was because Mr Le displayed no motivation to get ahead in life. Conflicts with stepfathers seem to be a common trigger for lawbreaking in today’s world of fractured families, and in this case it does seem to have set the stage for the applicant’s disastrous lapse into criminality. He fell in with a group of youths, not knowing at that stage that they were involved in crime, but three weeks later he was fully involved in planning and executing a jewellery store robbery with them.
25. He began his sentence in June 1998 at the age of 18 and a half and was granted a parole a little over two years later. It appears that at about the time he began his sentence, his mother effectively repudiated or abandoned him, though now that she is separated from the stepfather, she wishes to resume a proper relationship with her son. Both the applicant and his mother glide over that aspect of the applicant’s background in their own evidence, but their evidence does not contradict it. On his release from prison he returned to live with his mother, but relations with his stepfather, were still tense and there were frequent arguments between his mother and the stepfather over the applicant and his behaviour. In order to reduce the tension between his mother and stepfather he offered to move out of the house and seek work.
26. After leaving the parental home, he managed to find work as a kitchen-hand and waiter at a restaurant in Marrickville. The owner sympathised with his predicament and offered him a place to live above the restaurant. Because he was working long hours, however (from 9.00am to 9.00pm), he was unable to travel to Burwood to see his parole officer. He apparently made no serious attempt to contact the parole officer by telephone either, and offered no coherent explanation for that failure. At this point in his evidence the applicant became tearful, and I suspect that was because he intensely regrets his feckless failure to perform his parole obligations, a failure that has had far-reaching consequences for him.
27. He was quite vague about his time in prison, saying that he could not recall the disciplinary offences for which he was punished, or whether he had undertaken courses, though he did recollect having studied English at Goulburn, “and something else”. He had done sewing work and at Oberon had been assigned to carpentry, making beds at a location that was outside the boundaries of the facility. Correctional officers reported that he was a good worker and gave no trouble, and their reports became more laudatory as time went on.
28. Since being sentenced on the robbery charge, he no longer associates with the group of malefactors who had led to his downfall, nor have they attempted to contact him. He had held the waiter and kitchen-hand position for six months before he was arrested for riding a motorcycle without a license, an offence which, he said occurred because he was using the motorcycle to seek work.
29. After his second release he obtained employment with Lightning Power, an electrical contracting firm, for the period 2004 to 2005. The principal of that firm, Mr Bradley Habibi, wrote on 8 May 2005 that the applicant was an asset to the company because of his positive work ethic, good manner and genuine interest in the field. He had surpassed Mr Habibi’s expectations for his role.
30. Between March 2003 and December 2003 he worked Double Bay Laundry, the owner of which, Mr Lao Thi Nguyen, wrote on 5 May 2005 about the applicant’s time there. His work had involved home deliveries, deliveries to shops, ironing, and also serving customers. Mr Nguyen found him honest, reliable and a very hard worker who was always in time and was polite and helpful to him and to the customers. He said that if the applicant ever needed a job again he would be happy to employ him. When his work commitments permitted, Mr Le participated in an in-house training course on computers at Infinium Tech Pty Limited, at Bonny Rigg Heights. In an undated letter (G pp38-39), the managing director, Mr David Truong, described him as a person with great potential with an easy-going and good nature. He believes that Mr Le has made genuine progress and that given the opportunity, he will become an upright citizen.
31. After his second release, the applicant went to live with Anne Nguyen in a de facto relationship at the house where her mother and sister lived. He disclosed his criminal record at the outset and made himself useful around the house. Anne’s mother had long talks with him about his past and his probable future. In due course Anne’s mother began to treat him like a son (she had no son of her own), as did her father, who lived apart from her mother. When the father became unable to take care of himself for two weeks following back surgery, the applicant voluntarily performed all of his everyday chores. He helped him to and from the bathroom, washed him in the shower, went shopping for supplies, washed his clothes, and when his daughter was unavailable to do so, cooked his meals, though his culinary repertoire was limited to instant noodles. After two weeks Mr Nguyen had partly recovered and needed the applicant’s help only to lead him around while he was still unsteady on his feet. After that Anne’s father began to view Mr Le as a son.
32. Although that episode lasted only two weeks, it does demonstrate the close commitment has developed with Anne Nguyen’s family, possibly in part because at that stage his own mother had repudiated him. It also suggests an unselfish and considerate side to his personality that increases the likelihood of rehabilitation.
33. The applicant said that his concern to help Anne’s father at that difficult time for him was the reason why he withdrew from his studies at Ultimo TAFE in 2004. He received a pass grade in English only but was permitted to discontinue all other subjects. If released into the community he would in the first instance return to Double Bay Laundry where a position awaits him, but would like in due course to undertake studies and an apprenticeship in automotive maintenance. He is committed to his planned marriage on 9 July and to his intended future with his fiancée Anne.
34. The applicant also relied on a psychological assessment report dated 9 May 2005 (Exhibit A4) prepared by John Jacmon, OAM, who assessed Mr Le by clinical interview and by a psychological test. Mr Jacmon’s main conclusion was that there was no indication of any mental disorder or of any dependence on drugs or alcohol. Inadequate familial support, Mr Jacmon concluded, was the trigger for his involvement in the jewellery store robbery. He had matured and learned from his errors. His test results showed elevated scores in relation to anxiety and depression, but they were most likely the result of his present situation. He appeared to be sensitive, self-doubting, lacking in self-confidence. On the other hand, he reported close, generally supportive relationships with family and friends (which he did not have at the time of the robbery) and, most importantly, his scores and supporting materials did not reveal any triggers to potential offending behaviour. Nevertheless, Mr Jacmon recommended that if Mr Le remains in Australia he should attend counselling sessions with a psychologist monthly for the next twelve months. That would give him someone to lean on outside his own environment if disruptive issued should arise, someone with a professional perspective.
Application of the Law and Findings of Fact
35. As was stated above, there is no dispute, and I find accordingly, that Mr Le does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more or has been sentenced to two or more terms of imprisonment where the total of these terms is two years or more. As stated above, Mr Le was convicted of robbery in company and sentenced to two years with an additional term of three years.
36. The issue for the tribunal therefore is whether to exercise its discretion under s 501(2) to decide, nevertheless, not to cancel Tuan Anh Le’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
37. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(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.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
38. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraphs (e) armed robbery (including robbery involving the use of imitation weapons), (f) assault or any other form of violence against persons and (n) any other crimes involving violence or the threat of violence. Paragraph 2.7(a) also states that the decision-maker should have regard to “the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence”.
39. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
40. The first factor to be considered under this heading is the seriousness and nature of the conduct involved. In this case, the applicant was convicted of robbery in company less than two years after arriving in Australia. At the time of the offence he was armed with a replica pistol which he used to threaten the jewellery store owner. In sentencing the applicant, Judge Viney of the District Court said “It is certainly a most serious offence and must have caused considerable alarm to the shopkeeper and the other person in the shop. It is, as I have said, a very serious offence” (G p50) which, even by itself, would be a sufficient ground for visa cancellation even though, being a first offence, it was not preceded by a warning of possible cancellation. At the same time, as Mr Overall pointed out, his Honour thought there were substantial extenuating circumstances and in setting the non-parole period granted an unusually large discount of 50 per cent from the term of the sentence.
41. Next, the tribunal is to consider the risk of recidivism. Paragraph 2.10(b) of Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour. In this case, Mr Le was 17 when he returned to Australia on 11 May 1997 and 18 at the time of his conviction. In his statement of facts and contentions (Exhibit A10), the applicant’s counsel submits that the applicant “is unlikely to re-offend” because he is in a stable relationship with Anne Nguyen, she being his de facto wife and fiancée and not merely his girlfriend, and that such a stable relationship is likely to reduce the risk of recidivism; and he has a good work and education history.
42. The respondent contended that there is a likelihood that Mr Le may re-offend in the future. He was released on parole on 11 August 2000, but parole was revoked on 29 August 2002. That parole violation, coupled with his conduct in driving without a license and providing a false name and address, for which he was fined on 28 January 2003, representing a pattern indicating a significant likelihood of recidivism. Mr Overall countered that the respondent was confusing the seriousness of the offence with the risk of recidivism. The sentence had been served and the needs for specific deterrence had been satisfied. He committed the robbery offence as a immature teenager and his parole was revoked because of his failure to report, which he had explained, not for further offences. There was no pattern of law-breaking and the conviction for riding a motor-cycle without a license was not enough to warrant cancellation of the visa on character grounds. He is now an adult who is keen to work and learn a trade, who is supported by strong familial relations and has firm marriage plans. “He made a mistake as a teenager, but has been rehabilitated”. In any event, Mr Overall added, the factual basis for the decision-maker’s conclusion about the risk of recidivism was incorrect. After he was taken into custody for failure to report to his parole officer, the applicant was held for only six weeks and released again on parole. He was not imprisoned for seven months. The decision-maker had based her conclusion on false information, Mr Overall said.
43. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). In sentencing Mr Le, Judge Viney commented “… there has to be a significant penalty imposed because of the seriousness of the offence and the necessity to deter him and others from committing such crimes” (G p53).
44. While the seriousness of the offence and the needs of general deterrence do support the respondent’s decision in this case, the important countervailing factors are that the robbery was the applicant’s first and only serious offence and was committed when the applicant was aged 18. He pleaded guilty at an early stage and co-operated fully with the authorities. Although his record following prison on the robbery charge is not unblemished, he has no offences of any kind since 2001 and shows a serious commitment to work, to possibly improving his qualifications, and to his forthcoming marriage. The overall risk of recidivism appears to be slight, and the psychologist’s report supports that conclusion.
Expectations of the Australian Community
45. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
46. In this case, the applicant committed the very serious offence of robbery in company within two years of arriving in Australia and thereby betrayed the trust the community had placed in him by offering him the opportunity to settle in this country. The community could well collectively take the view that the public interest would have been best served if Mr Le had remained in Vietnam. But, given that he is lawfully here, he must be dealt with in accordance with Australian community standards. One of those community values is that allowances can be made for the foolishness of youth and that wherever reasonably practicable a young offender can be given a second chance, sometimes even after committing a serious offence. A decisive factor in such cases is whether there is solid evidence of rehabilitation. That is so in this case, where the applicant began the process almost from the time of his arrest by pleading guilty and assisting the authorities. He had continued the process both while in custody and after his release. Further, his offences have caused no lasting harm to any individual. Such considerations would tend to offset the normal view that a person who commits a serious crime has forfeited his or her right to remain in Australia.
The Best Interests of the Child
47. There is no evidence that the applicant has any children who would be affected by a decision under s 501(2) of the Act.
Other Considerations
48. Having applied the three primary considerations, the tribunal is then required to take into account a number of other secondary matters which, though generally given less individual weight than the primary considerations, may have a bearing on the appropriate decision. The relevant ones in this case are those in paragraph 2.17 (a), (c), (d), (h) and (k). The first three relate to the disruption of the non-citizen’s family and the degree of hardship they would suffer, including whether immediate family members are able to travel overseas to visit the non-citizen and the fourth relates to any evidence or rehabilitation and any recent good conduct. In this case, the applicant came to Australia to be reunited with mother. As a result of irreconcilable differences between Mr Le and his step-father however, he has had little contact with his mother until recently when she separated from her husband. It is likely that she would suffer hardship if Mr Le is returned to Vietnam.
49. Mr Le’s relationship with Ms Nguyen and her family is also a consideration. It is a genuine, stable and long-standing relationship which the parties plan to solemnize by marriage on 9 July. The union has the support of both families and the intending spouses are mature enough to understand the real commitment they are making. Ms Nguyen says that the applicant were to be removed to Vietnam she would not accompany him and would suffer great and lasting distress. She does not offer any reasons why she could not more to Vietnam, her own country of origin, but one can presume she means that she could not readily live in the politico-economic conditions prevailing there. Her parents would also suffer emotional hardship, as they have become close to him for the reasons given earlier.
50. These factors should be given weight, but they would not outweigh the primary considerations in this case but for a number of important circumstances. They are the fact that the robbery was the applicant’s first and only serious offence, which was committed when he was aged 18, and did no lasting harm to any person; that there is clear evidence of rehabilitation, starting from the time of his arrest – and continuing during his imprisonment and after his release; he is not involved with drugs and has never had an alcohol problem; he is willing and able to work and has offers of employment from previous employers; and he has firm family support and a stable relationship with his fiancée who he has arranged to marry in the coming weeks.
51. In my view he is rehabilitated and the risk that he will reoffend is slight. Community expectations would not be affronted if he is given a second chance. He must be aware, however, that if he relapses into lawbreaking in the future he is unlikely to receive another chance.
52. The decision under review is set aside and the matter is remitted for reconsideration on the basis that the discretion should be exercised in favour of not cancelling the applicant’s visa.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: (J.Colman) .....................................................................................
AssociateDate of Hearing 16 May 2005
Date of Decision 1 June 2005
Counsel for the Applicant Mr J Overall
Solicitor for the Applicant Mr Chand, Slattery Thompson
Solicitor for the Respondent Mr A Chand, Clayton Utz
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