Le and Minister for Immigration Multicultural and Indigenous Affairs

DECISION AND REASONS FOR DECISION [2002] AATA 535

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/1214

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Van Hiep Le
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date2 July 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – deportation order – applicant convicted of a criminal offence when a permanent resident of Australia for less than 10 years – applicant convicted of three deportable offences since date of arrival – need to consider the expectations of the Australian community balanced against the parental relationship of the applicant and his daughter and the hardship to the applicant if deported to Vietnam – discretion that the Tribunal may exercise – held that the seriousness of the deportable offences outweigh other considerations – decision of the Respondent affirmed.
Migration Act 1958 ss 200, 201, 204(1), 499, 499(1)(2A)
Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

2 July 2002 R P Handley

This is an application by Van Hiep Le ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 9 June 1997, to order the deportation of Mr Le from Australia. At the hearing, Mr Le was represented by Marion Le, Migration Agent, and the Respondent was represented by Nathan Cureton, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. Oral evidence was given at the hearing in person by the Applicant, Thi Tuyet Tran, Teresa Hong Ngo and Tran Xuan Le, and by telephone by James Robert Williams.

BACKGROUND

Mr Le was born in Minh Hai Province in Vietnam on 16 March 1965 and is aged 37. His mother died giving birth to him and his father subsequently remarried and had two more children by that marriage. Then, after the death of his stepmother, his father moved away and Mr Le began working as a foodseller selling cooked food to boats in the harbour. In 1978, at the age of 13, he travelled by boat to Malaysia where he spent about 18 months in a refugee camp. There, he was accepted for resettlement in Australia under the Indo Chinese Refugee Resettlement Program, accompanying his uncle. He arrived in Whyalla on 19 November 1980, aged 15. Initially, he went to school in Whyalla and then, in 1982, he and his uncle moved to Sydney. In the meanwhile, he had sponsored his younger stepbrother, Hiep Em Van Le, who had also been in a Malaysian refugee camp, to migrate to Australia.
After moving to Sydney, Mr Le worked as a machine operator in a factory supporting himself and his stepbrother for about two years until his stepbrother was seriously injured in a motor vehicle accident. Then, in May 1987, Mr Le was also seriously injured in a motor vehicle accident and spent some time in hospital. Shortly, after his release from hospital, on 29 May 1988, Mr Le was present when a man he was with stabbed a Vietnamese man outside a restaurant in Cabramatta. Mr Le was carrying a starting pistol at the time. He was convicted of manslaughter and sentenced to a term of imprisonment of three years and six months with an additional term of one year.
On 24 August 1990, a delegate of the Respondent warned Mr Le that his conviction rendered him liable to possible deportation. On 15 November 1991, Mr Le was notified that a delegate of the Respondent had decided not to order his deportation on that occasion but warned that any further conviction would lead to the question of his deportation being reconsidered. Mr Le was released on parole in November 1991. On 20 July 1992, while still on parole, Mr Le was arrested and charged with supplying a commercial quantity of a prohibited drug, namely heroin. At that time, Mr Le was living in a de facto relationship with an Australian citizen, Thi Tuyet Tran, who bore a daughter from that relationship, Nina Tuyet Nhi Le, on 27 November 1992.
On 19 November 1993, Mr Le was convicted of supplying a commercial quantity of heroin and sentenced to a minimum term of imprisonment of four years and six months with an additional term of two years and six months. Mr Le said this conviction involved a parcel which he placed under a bin. He claims he did not know that the parcel had heroin in it. On 23 October 1995, the NSW Court of Criminal Appeal dismissed Mr Le's appeal against the conviction and the severity of his sentence. On 19 January 1997, Mr Le was released on parole.
On 24 March 1994 and 16 January 1997, a delegate of the Respondent warned Mr Le that his November 1993 conviction rendered him liable to deportation. On 9 June 1997, a deportation order was made in respect of Mr Le and he acknowledged receipt of notification of this order on 25 June 1997. On 9 September 1997, Mr Le lodged an application for a review of this decision with the Tribunal.
On 27 September 1997, Mr Le was charged with supplying a commercial quantity of a prohibited drug, heroin. He was still on parole at this time. On 10 December 1998, Mr Le was sentenced by Judge Rummery of the NSW District Court sitting at Liverpool to a minimum term of four years and six months imprisonment from that date, expiring on 9 June 2003, with an additional term of two years and six months to commence on the expiry of the minimum term. On 28 June 1999, the NSW Court of Criminal Appeal dismissed an appeal against the severity of Mr Le's sentence.
Apart from the offences which render Mr Le liable to deportation, he also has the following additional convictions: 27 November 1985, stealing; 30 October 1986, break and enter with intent, and stealing; 22 November 1991, stealing, and break and enter with intent; 17 June 1992, found in gaming house, and 12 traffic/parking offences.
RELEVANT LAW AND POLICY
Section 200 of the Migration Act 1958 ("the Act") provides that the Minister may order the deportation of a non-citizen to whom Division 2 of the Act applies. Under s 201, the Minister may order the deportation of non-citizens who have been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than 1 year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than 10 years. Section 204(1) provides that any period during which the person was in prison is to be disregarded in calculating the length of time that the person has been in Australia as a permanent resident.
Mr Le arrived in Australia 21½ years ago, on 19 November 1980. His first deportable offence was committed on 29 May 1988, seven years and six months after arriving in Australia. His second deportable office was committed on 20 July 1992, after approximately 8 years and 2 months permanent residence according to s 204(1). The Tribunal notes that since the deportation order was made, Mr Le has committed a third deportable offence on 27 September 1997, after approximately eight years and ten months permanent residence.
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".
On 21 December 1998, the Minister issued a General Direction under s 499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation under Section 200 of the Migration Act 1958" (Direction No. 9). Direction No. 9 states in paragraph 4:
The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian Community and to exercise a choice on behalf of the Australian Community as a whole as to who should be allowed to remain in the community.

The Direction goes on to provide guidance as to the important factors which should be considered by a decision-maker when determining whether or not a person should be deported. The two primary considerations to be considered in making a decision whether or not to deport a non-citizen, set out in paragraph 6, are:
(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.
In addition to these primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases. Two of the most common are:
(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee;
(b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.

Direction No. 9 provides further guidance in relation to each of these considerations. This further guidance will be discussed below in relation to the particular facts of Mr Le's case.
ORAL EVIDENCE
Van Hiep Le (the Applicant)
Mr Le confirmed that he was born in Vietnam on 16 March 1965 and is aged 37. His mother died giving birth to him and his father subsequently remarried. His father is still in Vietnam but Mr Le has lost contact with him and does not know where he is. He also has an older sister with whom he has also lost contact. Mr Le said that after his mother died, he went to live with his aunty, his mother's younger sister. However, she had five children of her own, she was poor and there was barely enough room for him in the house. So, at the age of about eight, he became a street urchin, carrying a small mattress around with him. Mr Le said he later heard that his aunty had died. He started work at the age of 10, serving food to passengers on boats in the harbour. Then one day when he was about 13, his friend took him on a boat to Malaysia where he spent about 18 months in a refugee camp.
Mr Le said he had a younger brother who died in Vietnam and has another younger stepbrother, Hiep Em Van Le. It was his younger stepbrother whom Mr Le sponsored to come to Australia and who is currently also in prison, although not subject to a deportation order because he married in Australia. Mr Le said his stepmother in Vietnam has also died, although he learned of this after arriving in Australia.
Mr Le said he arrived in Australia in November 1980 with his uncle, a relative of his stepmother. Initially, they were in the care of a church group and then he lived in Whyalla with his uncle for about 18 months. He attended High School where he was placed in Year 9, but because he could not understand what was being said, he left after a few months and started work as a carwasher. After 18 months in Whyalla, he and his uncle moved to Sydney because there were more jobs there. He got a job as a machine operator at the Sleepmaker mattress factory in Canterbury. He worked there between March 1983 and December 1985 but left when he became dissatisfied with the pattern of work after the company merged with another company. Mr Le said there were a lot of problems as a result of the confusion generated by the merger. At that time, he lived in Lakemba with his uncle, a girl who is a friend of his uncle, and his younger stepbrother.
Mr Le said that after his younger stepbrother arrived in Australia, he paid for everything for him and tried to get him to go to school. However, he did not get on well at school and left and went to a boarding house. Then, in about 1984/1985, his stepbrother had a serious car accident and was taken to Goulburn Hospital. There, he had surgery to remove a kidney and remained in hospital for about a month. Mr Le said his stepbrother was changed after the accident. Mr Le went to see him at Goulburn Hospital on a number of occasions and it appears that as a result of some sort of misunderstanding with his employer over this, Mr Le lost his job. His manager said he was being lazy because he was sometimes late to work when he had been to see his stepbrother. Mr Le said that up to this time he had been a good worker. Then, in May 1987, Mr Le was involved in a motor vehicle accident whilst a passenger in a car belonging to a friend of his who worked with him at a club at 92 Johns Street, Karratha, where there were snooker tables and gaming machines. At night, the club was also a disco, but he worked there during the day. His job was as a doorkeeper. He was not a security guard. There were two other guards who were armed. Mr Le said that he believed the club was licensed because they had gambling machines.
Mr Le said that since the accident something has been wrong in his head and he has had difficulty remembering things. He has to write things down in a note book to remember them. He also has back problems. He has not lived with his uncle since the accident, although he did see him about five years ago when his uncle was working at a factory in Bankstown and he asked his uncle to try and get him a job. Mr Le said that on being released from hospital, he still had to have treatment at home and see his doctor on a regular basis, including getting exercises for his spine. As he was a passenger in the car and, therefore, not at fault, he eventually received about $70,000 accident compensation which he gave to his de facto wife, Ms Tran so that she could buy a house which was paid for largely out of Mr Le's compensation.
Mr Le said he worked at the club in Karratha for four or five months after his motor vehicle accident. Then, on 29 May 1988, Mr Le was present when a Vietnamese man was killed outside a restaurant in Cabramatta. Mr Le was with a Chilean man who had left a jacket at the club and asked Mr Le to accompany him to the club to retrieve it. A group of Vietnamese came out of the club and started to bash his friend who stabbed one of them. Mr Le said he was still suffering from the after effects of the motor vehicle accident and could barely walk. However, he did have a starting pistol with him which he fired in the air to scare away the aggressors. He said he was too weak to be involved in a fight and carried this gun in case he was attacked. He had purchased the gun from someone he met. It was small and cute and he liked it. He knew the gun was illegal, but considered it a toy. Mr Le was convicted of manslaughter because the judge said he had given support to his friend. At that time, Mr Le had no involvement in the drug trade. He said he pleaded guilty to the manslaughter charge because he was with his friend who had stabbed the Vietnamese man. Otherwise, he was not involved and did not believe he had committed any offence.
Mr Le was released from prison in November 1991 and, soon after, met Ms Tran. When he came out of prison, he shared a house with her older sister in Cabramatta and he met Ms Tran when she came to the house. Their relationship began a couple of months later with her being aware that he had been to prison when they started living together. Mr Le said he got a job washing cars for a car dealership on the Hume Highway at Cabramatta/Liverpool and after that at a furniture factory. However, he could not cope with the dust at the furniture factory and only stayed for a few months. He also had a job in a furniture shop where he was employed at the time of his arrest in July 1992.
Mr Le said he did not commit the offence for which he was arrested. Not long after he went back into prison, Ms Tran gave birth to their daughter, Nina. They had lived together in the house that Ms Tran bought with the compensation which he had received. His wife's younger sister's also lived at the house. Mr Le said when he was released from prison in January 1997, he initially lived in a caravan outside Ms Tran's house because Ms Tran had rented the house to another woman while she and Nina lived with her sister-in-law. However, sometimes Ms Tran and Nina used to stay with him in the caravan. After the woman to whom the house had been rented moved out, they moved back into the house together. Mr Le said he managed to get a job about a month after he was released on parole and, at the time of his arrest in September 1997, he was working in a factory polishing furniture. On the day in question, he was asked by a woman whom he knew to drive her to a hotel on the Hume Highway, where she was going to see a friend. She said she wanted him to accompany her because she was scared that she might be "jumped". When they got there, she asked him to carry a small package wrapped in newspaper into the hotel. He later discovered that the package contained heroin. Then the police came and arrested everybody and he was advised to plead guilty.
Mr Le said the woman's name was Hai Yen Nguyen. She had helped him when he was released from prison on the first occasion and had given him money and clothing. He said at the time of the arrest in September 1997, there was also another young woman present who was only imprisoned for a few months and then released. Ms Nguyen was sentenced to seven years with a minimum term of three and a half years. Ms Nguyen had asked him to do things for her on several occasions and accompany her to Mr Liu's place. On those occasions, she would meet with friends there and, on 26 September 1997, he thought she just wanted him to drive her there again. He acknowledged that she had, in the past, given him small amounts of heroin for his own use, but said he did not know that on that occasion she was involved in a heroin deal; otherwise, he would not have driven her there. He agreed that he had been with Ms Nguyen on the previous day at McDonalds when she met a man called David. Ms Nguyen had invited him to have a meal with her and he took Nina with him. On this occasion, Mr Le thought Ms Nguyen drove them there in her car. He said he had not been present when Mrs Nguyen and David discussed heroin. At that time, he must have been at the counter.
Mr Le acknowledged that he had used drugs from time to time, including heroin in very small quantities, but said he had not become addicted. Mr Le said he cannot smoke any more because of his asthma, for which he now uses a puffer, although he has had to use a nebuliser in the past. He said he would not be known in the Cabramatta community as a drug trafficker. He has never been involved in this sort of conduct. He was already earning a good living.
Mr Le said that while he has been in prison, he has not been charged with any offences, although he has been hospitalised twice when he has been beaten up by others. In prison, there is quite a lot of ganging up between Aboriginals and Asians and he has been beaten up by Aboriginal prisoners. At 1.6 metres tall, he is very short when compared to most other prisoners. Mr Le said the situation is better in Goulburn prison, rather than for example, Lithgow where Asian prisoners are often beaten up, because Aboriginals and Asian are imprisoned separately in Goulburn.
Mr Le said he has various family members who live in Australia, including an aunty (Thi Sau Le whom he knew in Vietnam). He also has uncles who are related to his stepmother. They are not, however, blood relations and he has not had any recent contact with them because he has been in prison for so long. Mr Le said he has seen his younger stepbrother from time to time for a few days when they have been in the same prison. Mr Le said he is still in a de facto relationship with Ms Tran and she often comes to see him, although he acknowledged that they had had "problems" at one time and separated for several months. He and his daughter love each other and when he speaks to her on the phone, she blows him kisses. They talk on the phone at least once a week, usually on the weekend because she is busy after school during the week. Nina used to visit him in prison with Ms Tran when he was imprisoned in Sydney but it became more difficult when he was in prison further away because Nina suffers from motion sickness and has difficulty travelling. He said that whenever he has any money, he gives this to Ms Tran to assist her caring for their daughter. He said that if he has to go back to Vietnam, he would be separated from his daughter and she does not want him to go. Mr Le is concerned that without his being there to assist Nina, she could become like him. Mr Le does not want Nina to suffer his disadvantages. He has not been back to Vietnam since he arrived in Australia. He had a terrible life there and wants to stay in Australia near his wife and daughter. If he is released from prison and is permitted to remain in Australia, he will try and find a job and resume living with Ms Tran and Nina.

Mr Le said he had asked his wife to move away from Cabramatta and the drug trade and to sell her house. He needed money to pay for his legal bills. Ms Tran now lives in Fairfield with one of her younger sisters who is separated from her husband and has two daughters living with her, one of whom is the same age as Nina, the other being younger. All three children go to the same school. Ms Tran stays home to look after the children while her younger sister works. Mr Le said he wants to see his daughter well educated. She is a keen student and has been commended by her teacher.
Mr Le said he did not go to school in Vietnam. He can read and write in Vietnamese but he is not sure about his spelling and grammar. Sometimes he listened to what was happening in the classroom from the road outside the school. There were others like him, all children who did not go to school because they could not afford to pay the fees. He said he spent about three years trying to learn by himself and thinks he reached the equivalent of about Year 3. In Silverwater Prison, he attended some classes when he was first transferred there. Because he has been moved around between prisons, he has not been able to attend any classes since. This is despite Judge Rummery's comments on sentencing him in December 1998 about the need for him to attend courses. Mr Le said that if he receives documents in English, he asks a friend to translate them for him. He does not always understand if one of the prison officers tells him about a document and speaks fast.
In every prison where he has been, Mr Le has applied for work. He can maintain engines, make clothing and work with an overlocker. He has tried to learn while in prison and has assisted other inmates to learn sewing skills. He has undertaken TAFE programs and completed a Certificate in Clothing Production in March 1999, a Certificate of Attendance at a Health Information Workshop on 24 May 2000, an Achievement Award for reading and writing Module 1 completed on 20 June 2000, a Certificate of Attendance in a Drug Awareness Course on 20 July 2000, and a Certificate of Attendance in a Drug and Alcohol Awareness Program on 9 August 2000. He also has a Certificate for Proficiency in a Textile Training Program. Mr Le said the difficulty with his memory limits what he can read and understand and sometimes he gets frustrated.
Mr Le said he has given Ms Tran $5,000 which was partly his earnings while in prison – he earns about $60 per week, and partly money given to him by friends. When Mr Le is able to earn money, he saves this to send to Ms Tran for the benefit of Nina. He only needs between $20 and $30 per week for himself in prison and saves any additional earnings. He also makes little gifts to send to his daughter. He has a lot of photographs with him in prison. Mr Le said he gets on reasonably well with other people and still has friends who have not deserted him and come to visit him in prison. If he is released from prison, he would try and be a good person and wants to be with his family and protect his daughter. If he is sent back to Vietnam, he has nowhere to live and no links with any one. Finding employment will be difficult and, in Vietnam, sewing is mostly done by women. He has also heard that drug trafficking in Vietnam carries the death penalty.
In cross-examination, Mr Le was asked about various misconduct charges made against him while he has been in prison. In June 1995 and in November 2000, he was charged with having "drugs in urine". He said that while in Goulburn prison, he had been given some powder which looked like heroin which he had inhaled or smoked. In November 2000, while at Silverwater, he was caught with a syringe, which he said belonged to a fellow prisoner with whom he shared a cell who was using drugs. Mr Le said that he has smoked drugs but never uses a syringe. He smoked heroin using a foil.
Mr Le said he did not remember whether he had been warned about the possibility of deportation and, specifically, whether he had gone for an interview at the Department's office at Bankstown in January 1997.
Teresa Hong Ngo (A7)
Ms Ngo was born on 12 August 1965 and is aged 36. She is unmarried but has one child who will be 8 years old in June this year. Ms Ngo and her daughter live in a three bedroom Housing Commission unit with her mother. Ms Ngo said she came to Australia on 17 February 1982 with her mother, sister and uncle's family, settling in Sydney. Ms Ngo went to school for two years finishing Year 9. After leaving school, she worked as a machinist, and then as a sales assistant in a Vietnamese bakery in Cronulla where she knew the owners. She worked in the bakery for about two years around 1994/1995. She became an Australian citizen on 26 March 1986. Ms Ngo owns a property at 542 Smithfield Road, Smithfield Park, and jointly owns a property with her sister at 46 Belar Avenue, Villawood.
Mr Ngo said she first met Mr Le when she came to Australia, and has maintained contact with him ever since. Her mother had known Mr Le's family in Vietnam and Ms Ngo also knew Mr Le's younger brother who had been in the refugee camp. Ms Ngo has visited Vietnam many times and has met Mr Le's family there because her own family used to live in the same area and their family's tombs are near the village where Mr Le's family live. Ms Ngo's family now live in a different place, near the city: she has three uncles and an aunty all of whom have children, and a maternal grandmother. One of her uncles breeds prawns while another looks after her grandmother. The latter uncle does not have much money, so Ms Ngo's family in Australia help support him.
Ms Ngo said she has met Mr Le's father, grandmother and older sister who are all living in poor conditions. They fish for a living and hardly earn enough money to buy food. Ms Ngo said it would be hard for Mr Le to return to Vietnam because his family would be unable to offer him any material support - they barely have enough for themselves. His older sister is married and has four or five children and lives with Mr Le's father and his wife in a thatched house with no toilet. Mr Le's grandmother lives elsewhere. Mr Le's father is unaware that Mr Le is in prison in Australia and Ms Ngo did not tell him. Mr Le does not have any contact with his father.
Ms Ngo said she would not take her own daughter to live in the Province of Cau Mau, where Mr Le's family live. There is no chance of an education for children. Mr Le's family's village is a fishing village with no hospital and with only a medical station with few means. Ms Ngo said her brother-in-law is a paramedic in the area of Mr Le's village and only has very limited facilities. For more serious problems, people have to go to the city. Medicine is expensive, but although there is no mains electricity, there is a small generator which would enable Mr Le to use a nebuliser.
Ms Ngo says she has known Mr Le's wife, Ms Tran, for more than 10 years and she also knows their daughter. Mr Le and Ms Tran are still close and when Mr Le is in a prison near the City, Ms Tran goes to visit him often. Their daughter, Nina is a good student. She says she misses her father a lot and is waiting for him to come out of prison. Ms Ngo said Nina needs her father's love and would be very upset if her father was deported with the consequence that her studies would be disrupted. While Mr Le has been in prison, he has phoned Ms Ngo twice a week and she has visited him at Long Bay and Silverwater prisons. He is like a brother to her. Ms Ngo has never been involved with drugs nor been in trouble with the police.
Ms Ngo said Mr Le is a man who does not think very much and makes mistakes. He also has a gambling problem. He grew up without a mother and did not really have a father and, as a result, had a terrible childhood. Ms Ngo's mother was like a mother to Mr Le and he sometimes calls her "aunty" and sometimes "mum". Ms Ngo's cousin, Thi Lieu Le, was convicted and sentenced with Mr Le in respect of the same offence. However, she is an Australian citizen, has now been released from prison and is not being threatened with deportation. She is married, has a family, a job and is living in Canberra. Ms Ngo no longer has regular contact with her.
Ms Ngo said she believes Mr Le has learned his lesson and will not reoffend in the future. He has a family for whom he cares very much. He will not be a danger to the community. His problem is an addiction with gambling and, if he can address this, he will not reoffend. Ms Ngo said that if Mr Le is released, she will provide him with moral support and, if necessary with accommodation and financial support. Ms Ngo said that when Mr Le was not in prison in 1992, she would sometimes see him twice a week, at other times once a month. When he was out of prison in 1997, she saw him about once week. She became aware of Mr Le's gambling problem when she went with him to the club. She said he listens to his "mates" too much and gets himself into trouble. He never actually gambled very much money because he did not have very much. By gambling, she means playing the poker machines. When Mr Le did not have a job he got bored and would tend to go and gamble on the machines. She is not aware of him having any gambling debts.
Ms Ngo is aware that Mr Le and Ms Tran were living together when he was out of prison. Ms Ngo's daughter and Nina are friends and play together. Ms Ngo said she would be prepared to work closely with Mr Le on his release from prison and would support his undertaking a rehabilitation program, particularly, to learn English. She thinks he would accept her guidance. He is not a physically violent person, but is always helpful and likes to please other people.
Tran Xuan Le (A12)
Ms Le was born on 1 October 1944 and became an Australian citizen on 1 December 1994. She arrived in Australia on 17 February 1982 with her two daughters and her brother's family. It was one of her brother's daughters who was involved in an offence with Mr Le in 1997. However, Ms Le has had little contact with her niece and rarely sees her.
When Ms Le arrived in Australia, Mr Le was already here and working in a factory. He helped them a lot when they first arrived including providing household goods. Ms Le knew Mr Le's family in Vietnam and knew him when he was young. She is aware that he did not have a mother and that he had a very unhappy childhood. His father remarried and did not care much about his son. Mr Le was initially cared for by an aunty, but he had to start working when he was very young and never went to school. In the area where Mr Le's family live, most people are very poor except for business people. It would not be easy for Mr Le to return to Vietnam because, in the countryside, most people are still poor. Ms Le said she has been back to Vietnam twice but did not visit Mr Le's family because she stayed in the city.
Ms Le said she likes and loves Mr Le very much. He is a good man who was very kind to her when she first arrived in Australia; in particular, when she was sick and he took her to hospital in his car. Ms Le said she also visited him in hospital after he was involved in a car accident when he had serious head injuries. However, after recovering from the accident, he was still able to work. Ms Le said she is aware of his three prison sentences and is, nevertheless, prepared to assist him if he is released from prison. She acknowledged that she had not asked Mr Le about the offences for which he was imprisoned and does not know why he was sent to prison. She often sees Ms Tran and Nina whom Mr Le cares for very much. Whenever Mr Le has money, he sends it to them. Ms Le has visited him in prison but it is difficult when he is moved around between prisons and especially if he is in Goulburn Prison. Ms Le will be very unhappy if Mr Le is deported and will miss him. She said it is in Nina's best interest for him to stay in Australia because he is a good father and will look after her. She has often seen Mr Le and Nina together, for example when he has taken her to the shops or to a restaurant or to buy toys. When he has not been in prison, Ms Le has usually visited Mr Le once every week or two.
Thi Tuyet Tran (A15)
Ms Tran said she was born on 16 June 1960 and is aged 41. She became an Australian citizen on 24 April 1996, having come to Australia from Malaysia in January 1990 with her two sisters under a refugee program. She first met Mr Le in 1991 and their daughter, Nina was born on 27 November 1992. Nina is an Australian citizen. Nina loves her father very much and they are very close. They speak Vietnamese together and Mr Le also speaks Vietnamese to Ms Tran. Her English is not good. Nina keeps asking why her father is in prison. She has told Nina that someone beat him up and, when he retaliated, he was caught. Ms Tran said if Mr Le was deported, it would be a great loss for Nina who would be deprived of his love and care. Ms Tran said she would also lose a husband whom she loves and cares for.
Nina now goes to St John's Park Primary School where she is in Year 4. She is a good student. When Nina was younger, she and Ms Tran would visit Mr Le two or three times a week. Now Nina is older, Ms Tran takes her to visit him on Sundays because Nina goes to a Vietnamese language school on Saturday. Ms Tran has not visited Mr Le in Goulburn Prison because she does not know how to get there. Ms Tran said she does not have a criminal record and has never been involved with drugs. When she first met her husband in 1991, she was not aware that he had been in prison until a few months later when her older sister told her. Mr Le said he had been wrongly convicted: that he had been with a friend who was beaten up, and he fired a fake gun, which he was carrying. She heard that when Mr Le was in court, he had to plead guilty.
Ms Tran said that Nina was born when Mr Le was back in prison. She learned that on this occasion, in 1992, he was charged with drug dealing with a Mr Tran whom she has met once or twice. Mr Le has since told her that he was not involved: he met up with a friend who asked him to go along. At the time of Mr Le's arrest in 1992, Ms Tran and Mr Le were living together. However, when Mr Le was released from prison in January 1997, her house was rented out so they had to wait for the tenant to move out before they could move back in. In the meanwhile, Mr Le lived in a caravan beside the house where Ms Tran used to stay with him from time to time. Ms Tran recalled a departmental officer coming to her house on 27 March 1997 and their visiting a departmental officer at Bankstown on 30 April 1997 when the possible deportation of Mr Le was discussed.
Ms Tran said she and Nina are now living in a house owned by her sister, with Ms Tran's sister and her children, one of whom is the same age is Nina. They all go to the same school together. Ms Tran is not currently working. She is receiving parenting allowance and pays rent to her sister for whom she also babysits while her sister works and sometimes on weekends. Her sister pays her for this. Ms Tran said her life is centred around Nina's and is very sad.
Ms Tran said she had to sell her house at 30 Yvonne Street, Cabramatta which she bought with money given to her by her husband, because Mr Le needed to pay his legal fees and they had no other money. The money from the sale of the house is all gone. Ms Tran paid $135,000 for the house which was registered in her sole name. She sold the house for approximately $200,000 about a year ago having previously borrowed money to pay Mr Le's legal fees. She said Mr Le is more important to her than the money. She also used some of the money to return to Vietnam for her mother's funeral. She has been back to Vietnam on four occasions with Nina who has travelled on a separate Australian passport: to Dalak and Vung Tau to see her relatives, once for her father's funeral, once for her mother's funeral and then to attend the weddings of her two younger brothers. Both her brothers now work and have children. One is a bus driver and the other is a security guard. She also has an aunty and two uncles. Neither of the uncles work because they are too old. Mr Le does not know any members of her family in Vietnam.
Ms Tran said she has not visited Mr Le's family in Vietnam and is not aware of any family that he has there. If he is deported to Vietnam, he will be penalised because he suffers from asthma and will be unable to obtain proper treatment there. Ms Tran said she had no intention of returning to Vietnam to live permanently. If she were to follow Mr Le to Vietnam, there would be no future for Nina. If Mr Le is released from prison and permitted to remain in Australia, he will live with her and Nina. Her two sisters are also supportive of her relationship with Mr Le. Ms Tran said she does not think Mr Le would reoffend if he is released from prison. He has never been violent and, continues to give her money when he has this. He sent her a cheque with money he had earned in jail and received from friends.

JAMES ROBERT WILLIAMS (R3)

Mr Williams is the Director of the Unauthorised Arrivals Section of the Department in the Australian Capital Territory and responsible for removal arrangements from Australia. He said that on 25 February 2002, two Vietnamese citizens were removed from Australia to Vietnam, one of whom had been in Australia since 1983. One had been convicted of supplying a prohibited drug and Mr Williams thought the other one may also have been convicted of a drug related offence. Australia has submitted a number of other cases to the Vietnamese Government under the terms of the Memorandum of Understanding (MOU) between the Australian and Vietnamese Governments which took effect on 15 August 2001. The Vietnamese government then makes various checks in order to decide whether to approve the return of individuals referred by Australia. Once approved, the Vietnamese Government issues travel documents to deportees. The Vietnamese Government has asked for the terms of the MOU to be kept confidential. The First Secretary of the Australian Embassy in Hanoi is handling arrangements under the MOU.
Mr Williams said that arrangements for a person to be removed from Australia are normally made towards the end of a person's sentence and after all appeal processes have been exhausted. In the case of Vietnamese deportees, they will receive exactly the same assistance and services in Vietnam as any other Vietnamese citizens. However, he acknowledged that there is no monitoring or follow-up of deportees once they are returned to Vietnam.
SUBMISSIONS
Applicant
Ms Le, for the Applicant, said Mr Le's mother died at his birth and his father remarried and did not care for him. Mr Le had a sad lonely childhood, was unable to go to school and his only exposure to school was sitting outside the classroom looking in. Mr Le is barely literate in Vietnamese and semi-illiterate in English. After arriving in Australia in 1980 with his uncle from a Malaysian refugee camp, Mr Le and his uncle lived in Whyalla for about 18 months before moving to Sydney in 1982. Ms Le said witnesses had given evidence that Mr Le was working in Sydney and assisted them with settlement on their arrival. He also assisted his younger stepbrother when he arrived from Malaysia. In 1985, that younger stepbrother had a motor vehicle accident as a result of which he was hospitalised in Canberra and in Goulburn. Mr Le lost his job because of going to see his stepbrother in hospital. Then, in May 1987, Mr Le had a serious motor vehicle accident, suffering head injuries, as a result of which he continues to suffer headaches and memory loss. He has also developed asthma for which he was hospitalised in 1998 at Westmead Hospital.

Ms Le said that Mr Le was present in Cabramatta in May 1988 when a man was killed and, on 16 March 1990, Mr Le was convicted of manslaughter in respect of this death. Mr Le remains puzzled by this. Social work reports indicate that Mr Le is not very intelligent and that he has difficulty comprehending. His daughter, Nina, who is nearly 10 years old, was born as a result of his relationship with Ms Tran which commenced in 1991. Ms Le noted that both Nina and Ms Tran are Australian citizens.
With regard to Direction No. 9, and the first of the primary considerations, the Expectations of the Australian Community, Ms Le, while conceding that the offences for which Mr Le has been convicted are in the most serious category, submitted that the risk of recidivism is low given the evidence of Ms Ngo, Ms Tran Xuan Le and Ms Tran that they will provide support and assistance for Mr Le if he is released to facilitate his reintegration into the Australian community. Ms Tran is still in a relationship with Mr Le and he would go to live with her on his release. Ms Le noted that the history of the offences for which Mr Le has been convicted show that he has always been involved as an assistant and not as a principal. This is a reflection of his willingness to help others. With regard to Mr Le's conviction for manslaughter, Ms Le said there is no evidence of direct violence by Mr Le. It was a starter pistol that he had with him, which he fired to scare away the aggressors. Neither of the drug offences involved weapons. Ms Le said there is also no evidence that Mr Le embarked on drug related crime for financial gain, nor that he has ever injected himself with drugs, or been a trafficker.
With regard to any deterrent effect from Mr Le's deportation, Ms Le said that Mr Le is not a well-known person. Only his family would know of his deportation and Ms Le doubted this would have any deterrent effect. With regard to community expectations, Ms Le submitted that the community would recognise that Mr Le has paid for his crimes and matured. She suggested that the Australian community would be interested in Mr Le's rehabilitation.
With regard to the second of the primary considerations, the Best Interests of the Child, Ms Le submitted Mr Le's daughter, Nina, would suffer enormously if her father is deported. There is evidence of their having a strong relationship, of his desire for her to have a good education, and of his providing care and gifts for Nina. Mr Le is concerned that Nina might end up like him and he wants to be there to ensure that she does not. Nina's best interests are to have both her parents present in Australia. Ms Tran will also suffer hardship if Mr Le was deported. She will not go back to live in Vietnam because it would not be in Nina's best interest for her to do so.
With regard to other considerations, Ms Le submitted that Mr Le would suffer significant hardship if he is deported to Vietnam where he has not lived since leaving as a 13 year old. His father did not care for him as a child and there has been no contact between them in recent years. Mr Le has no other family or community links in Vietnam having spent all his adult life in Australia. Ms Le also noted the inadequacy of the medical facilities in Vietnam, in particular, in relation to Mr Le's need for treatment for his asthma and headaches. With regard to the consequences of Mr Le's deportation, Ms Le suggested that Mr Le's criminal background might be of concern to the Vietnamese authorities. She said there has been no monitoring of the treatment of deportees to Vietnam. The fact that Mr Le came to Australia as a refugee should be taken into account and whether his life or freedom might be threatened on his being returned to Vietnam.
Ms Le said that while Mr Le had no wish to impugn Australia's sentencing process, it should be noted that he did not have a good knowledge of the law and was reliant on others for interpretation of the law and the legal system. However, he now has a clear understanding of his position; in particular, that if he is released and reoffends, he will be deported. He has learned from his experience. Ms Le submitted that Australia accepted responsibility for Mr Le as a young boy and continues to have a responsibility for him now. It should be noted that he did not receive appropriate treatment on arrival in Australia when he was placed in a Year 9 class at school where, clearly, he did not fit in. As a result, he has minimal literacy. While he has learned sewing skills in prison, in Vietnam sewing is usually done by women and he would be laughed at. Moreover, in Vietnam opportunities for employment often depend on familial links and Mr Le has none.
Ms Le said Mr Le does not have a gambling problem. The reference to his gambling is to his spending a few dollars in poker machines. There is also no evidence of Mr Le having a heroin problem and, therefore, he would have no motivation to reoffend. The only risk of recidivism lies with the kind of friends he might allow into his life. However, the motivation of him being with his daughter, his desire to care for her and Ms Tran, militates against any risk of reoffending. In conclusion, Ms Le submitted that the hardship to Nina, Ms Tran, Mr Le and his other friends in Australia, far outweighs the interests of the Australian community.
Respondent
Mr Cureton, for the Respondent, submitted that Mr Le has committed a number of very serious crimes in Australia: these include manslaughter in March 1990 and convictions for supplying heroin in 1992 and 1997. The Respondent contends that Mr Le did seek to profit from the heroin transactions because he is not himself a user of the drug. The sentencing comments of Judge Kinchington on 19 November 1993 (T30), indicate that the Judge found Mr Le's involvement was for the "rewards that were undoubtedly to flow to you" (T30 p103). The seriousness of the two drug offences is evident in the sentences of seven years that Mr Le received for each offence.
Mr Cureton referred to the Tribunal decision in Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36, where Brennan J said at 39:
The criminal sale of heroin is an offence which raises a strong case for deportation: whether the offender be a pusher who seeks a profit from a loathsome trade, or whether he be an addict who seeks merely to maintain his supplies of the drug. If the offender be a pusher, he shows a conscious disregard for the lives of his victims, their health and their happiness which is so gross and so grievous that the prospect of his developing a sense of social responsibility is inevitably suspect; if the offender be an addict, his need is so overpowering that it is folly to think that he could and would refuse to traffic in the drug if the necessity to do so again arose.

Mr Cureton submitted that Mr Le's attempts to explain his conduct indicate his lack of remorse and failure to take responsibility. The Tribunal should not go behind Mr Le's convictions for which a right of appeal was available to address any injustice. Mr Cureton submitted that deporting Mr Le would send a message to others involved in the distribution and sale of heroin. Deterring low profile people involved in this trade is equally as important as deterring high profile people. If Mr Le is allowed to stay because of the best interests of a child, this could send a message to others that having a child is a means of preventing a person's deportation.
Mr Cureton submitted that there is a high risk of Mr Le reoffending. He noted that the two drug offences were, in each case, committed while Mr Le was on parole and after he had been warned of the possibility of deportation after his conviction for manslaughter. After that conviction, Mr Le was interviewed in prison in March 1991 about the possibility of his deportation, and was later informed by letter dated 15 November 1991 that he was being given a second chance but any further conviction would lead to the question of his deportation being reconsidered. The Respondent submits that Mr Le has abused that chance. Notwithstanding the warning, Mr Le reoffended within seven months of being released on parole on 29 November 1991. Mr Cureton noted that Mr Le and Ms Tran were interviewed at the Department's Pitt Street office on 23 January 1997 (T50) when the possibility of his deportation was again discussed. Even after receiving the deportation order on 25 June 1997 (T p3), Mr Le reoffended again on 27 September 1997. The fact that Mr Le reoffended while he was still on parole, heightens the risk that he may again reoffend if he is released from custody.
Mr Cureton noted that Mr Le is easily lead by others. He referred the Tribunal to Judge Rummery's sentencing comments on 10 December 1998 (A1): the Judge referred to comments by a psychologist that Mr Le "would be susceptible to manipulation" and may not stop to consider the implications of his actions or predict likely behavioural outcomes. Mr Cureton noted that the support of Mr Le's family and friends has not prevented him reoffending in the past. He referred the Tribunal to a 1989 report by Ms J Durman, a Probation and Parole Officer (T p28), which makes reference to Mr Le's gambling and to his not being remorseful in relation to the manslaughter conviction because of his not being involved in the offence. A parole report dated 25 July 1991 (T25) refers to Mr Le's poor judgement in his choice of previous associates and the need to give special attention to his associates and the possibility of a future gambling problem. Mr Cureton also referred the Tribunal to the NSW Department of Corrective Services record for Mr Le (R2) which details Mr Le committing the prison offences of having "drugs in urine" on 26 June 1995 and 20 November 2000. Mr Cureton concluded that all the evidence suggests an unacceptably high risk of Mr Le reoffending.
With regard to the best interests of Mr Le's daughter, Nina, Mr Cureton submitted that her interests are outweighed by the need to protect the Australian community. If Mr Le is deported to Vietnam, the effect on Nina will only be an emotional one and will have no significant financial effect. Mr Cureton noted that Mr Le has spent many years in prison and, during the ten years of Nina's life, he has only been out of prison for eight months. Despite the absence of her father in prison, Nina is doing well at school and is a good student.
APPLICATION OF THE LAW AND FINDINGS
As stated above, under s 201 of the Act, the Minister may order the deportation of a non-citizen who has been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than 10 years. In making the deportation order dated 9 June 1997, the Respondent relied on Mr Le's conviction on 19 November 1993 of supplying an amount of a prohibited drug, namely heroin, an offence which was committed on 20 July 1992 for which he was sentenced to a minimum term of imprisonment of four years and six months with an additional sentence of two years and six months. Evidence of that conviction appears in the T documents (T30). The Tribunal agrees with the Respondent that at the time of the commission of the offence on 20 July 1992, Mr Le's permanent residence in Australia excluding, pursuant to s 204(1), periods during which he was confined in prison, amounted to approximately eight years and two months. The Tribunal therefore concludes that Mr Le is liable to deportation under s 201 of the Act.
At issue is whether to exercise the discretion to deport Mr Le. Like other decision-makers, the Tribunal is guided by Direction No. 9 in exercising this discretion. The two primary considerations to be considered in making a decision are set out in paragraph 6:
(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee the best interests of the child or children.
There are two aspects to community expectations noted in paragraph 8 of the Direction:
(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who currently commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
Paragraph 10 identifies three factors as relevant to an assessment of the level of risk to the community and the need for its protection:
(a) the seriousness and nature of the crime;
(b) the risk of recidivism;
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

In addition to the primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases. Paragraph 21 states that "it is appropriate that these matters be taken into account but given less weight than the primary considerations". These matters include:
(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
(b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration).

With regard to the expectations of the Australian community, the Tribunal finds that Mr Le has committed three serious offences - manslaughter and two counts of supplying heroin, and a number of less serious offences, together with 12 traffic/parking offences. Mr Le's most recent conviction was on 10 December 1998 when he received a minimum term of four years and six months imprisonment with an additional term of two years and six months. His expected release date is 9 June 2003. The Tribunal also finds that Mr Le was on parole on both occasions when he was charged with supplying a prohibited drug, namely 21 July 1992 and 27 September 1997, and that he received a number of warnings about the possibility of deportation after his conviction for manslaughter, and still reoffended even after the deportation order was made. There is no evidence that he has learned from his experience as Ms Le suggested. Paragraph 11 of Direction No. 9 states in sub-paragraph (a):
Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the Community.

Moreover, in Arbelaez (supra) at 39, Brennan J stated that "The criminal sale of heroin is an offence which raises a strong case for deportation".

The Tribunal notes the sentencing comments by Judge Kinchington on 19 November 1993 (T30) as to Mr Le's lack of contrition and that his involvement in the transaction "was for the rewards that were undoubtedly to flow to you". While Judge Rummery in sentencing Mr Le on 10 December 1998 (A1) found that Mr Le was not the principal offender, the Judge found him to be susceptible to manipulation and that he "got sucked into" the operation. The total sentence of seven years ordered by the Judge reflected Mr Le's previous convictions and the fact that the offence was committed while he was on parole.
With regard to the risk of recidivism, the Tribunal had regard to Judge Rummery's comments including that Mr Le "may not stop to consider the implications of his actions or predict likely behavioural outcomes". The Tribunal finds that Mr Le was charged with the prison offences of "drugs in urine" on 26 June 1995 and 20 November 2000 (R2). A closer examination of the NSW Department of Corrective Services Case Management File, produced in response to a Summons by the Respondent, records a total of seven "drugs in urine" charges: 24 April 1995, 18 January 1997, 4 March 1997, 28 November 1999, 13 October 2000, 20 November 2000 and 6 August 2001. Mr Le's evidence is that while he is not a drug addict and does not inject drugs, he has used a foil to smoke heroin. However, his Case Management File contains a statement by one officer that, on 20 November 2000, through a glass panel in the door, he saw Mr Le "removing a syringe from his arm", and by another officer called to the scene shortly afterwards, that he noticed "fresh puncture marks" in the left arms of both Mr Le and the other prisoner in the cell. Nevertheless, the officers failed to find the syringe when they searched the cell. Mr Le's evidence about Ms Nguyen, who was the principal offender in relation to the offence committed on 27 September 1997, was that she had given him small amounts of heroin for his own use. Although Mr Le gave evidence that he no longer takes heroin and does not smoke any more because of his asthma, the Tribunal finds this lacks credibility give his prison record. Mr Le has undertaken a number of drug awareness programs, most recently in July and August 2000 (A3), yet he still appears to have taken drugs after this.
Mr Le's witnesses gave evidence that he has learned his lesson and that it is unlikely that he will reoffend if he is released. Weighing up all the evidence, the Tribunal finds that there is a real risk of Mr Le reoffending, especially given his recent prison record. That risk may turn on the company with whom Mr Le might associate if released and whether his associates might manipulate him into involvement in other criminal conduct. Mr Le's continued use of drugs obviously increases the risk. With regard to deterrence, the Tribunal recognises that the deportation of Mr Le may discourage or deter others from becoming engaged in similar criminal activity.
When considering the expectations of the Australian community, paragraph 15 of Direction No. 9 sets out "the Government's view that the Australian community trusts non-citizen residents to obey Australian laws" and that it may be appropriate to deport a person who betrays this trust. Mr Le has a substantial criminal record including three very serious offences. By the time he is due for release on 9 June 2003, he will have served 13 years and eight months in prison. The Tribunal notes that Mr Le was warned about possible deportation on 24 August 1990 (T14), on 5 March 1991 (T24), and on 15 November 1991 (T28). On the last occasion, he was warned that "any further conviction will lead to the question of your deportation being reconsidered". Mr Le was also warned of the possibility of his deportation following his conviction on 19 November 1993 and, despite this, committed another serious offence on 27 September 1997.
The second primary consideration to which the Tribunal must have regard is the best interests of Mr Le's child, Nina. Direction No. 9 states that the decision-maker must determine the best interests of any children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee. Mr Le has one child, Nina, who will be 10 years old on 27 November 2002. The Tribunal has no doubt that Mr Le genuinely loves his daughter and wishes to be involved in her future care and education. Ms Tran's evidence suggests that Nina, although a happy child and good student, misses her father and reciprocates his love. Nina is an Australian citizen who lives with her mother, her aunt and cousins in what Ms Tran's evidence suggests is a happy family situation. The Tribunal notes that although Nina is said to miss her father, he has only been out of prison for about eight months of her life. There is no evidence that she has been affected by his absence other than, possibly, emotionally. While the Tribunal accepts that Mr Le's deportation will have an emotional effect on Nina, the Tribunal questions whether it is likely to be significant or different from that which she has experienced as a result of Mr Le being in prison. The Tribunal notes that Ms Tran has taken Nina to Vietnam on four occasions in recent years and, if she is able to do so should Mr Le be deported, Nina and Mr Le will be able to maintain occasional contact in person and will be able to continue their contact by telephone.

Direction No. 9 also requires decision-makers to have regard to other considerations where relevant. As stated above, these include the degree of hardship which may reasonably be expected to be suffered by the potential deportee and by other Australian citizens or permanent residents as a consequence of the deportation. The Tribunal accepts that some emotional hardship may be caused to the family witnesses called to give evidence on Mr Le's behalf. In particular, hardship would be caused to Ms Tran who, in the past, has been in a de facto relationship with Mr Le, and gave evidence that she still cares for him and would take him back into her home if Mr Le were released from prison in Australia. Despite Ms Tran's evidence, the Tribunal has some doubts about the strength of Ms Tran's relationship with Mr Le after they have been apart for all but eight months of nearly ten years and in the light of Mr Le's evidence of their relationship having had "problems" at one time and of their having separated for several months. Clearly, Ms Tran has adapted to living her life without Mr Le's presence.
The Tribunal also takes into account Mr Le's background, his difficult childhood and acceptance into Australia under an Indo Chinese Refugee Resettlement Program in 1980, when he was aged 15. The Tribunal recognises that Mr Le left Vietnam at the age of 13, his mother having died in childbirth and his father seemingly having taken little responsibility for or care in Mr Le's upbringing. Mr Le has not returned to Vietnam since arriving in Australia and would, therefore, need to re-establish family and social ties if he were to return to Vietnam. The Tribunal notes that Mr Le was injured in a serious motor vehicle accident in 1987 as a result of which he may have suffered some mental impairment and has a poor memory and continues to suffer from headaches. Moreover, Mr Le has developed asthma for which he requires ongoing medication.
Mr Williams gave evidence of the MOU between Australia and Vietnam as a result of which Vietnamese citizens may be deported from Australia to Vietnam. The first deportations under this agreement took place in February 2002. The Tribunal recognises that Vietnam is a poor country and underdeveloped by comparison to Australia. The Tribunal notes that Mr Le speaks Vietnamese, although his literacy may be minimal. The evidence suggests that he may be reasonably good at getting on with others, and while sewing may, primarily, be a female occupation in Vietnam, nevertheless, the skills Mr Le has acquired in textile and clothing production could be of benefit to him in securing employment.
On the other hand, the Tribunal recognises that the family who matter to Mr Le are in Australia. He is committed to his daughter, Nina and has close family members who have given evidence that they will provide him with support should he be released into the Australian community.
With regard to Australia's international obligations, the Tribunal notes that the situation in Vietnam has changed significantly since the time of Mr Le's leaving in 1978. All the witnesses who gave evidence on behalf of Mr Le have returned to Vietnam in recent years to visit their families and, as stated above, while the Tribunal recognises that Vietnam is a relatively poor and underdeveloped country, nevertheless, the country is no longer at war, the system of government has stabilised, and there is no evidence that Mr Le would suffer any persecution if he were to return. Although there has been no follow-up on or monitoring of Australian deportees to Vietnam, the MOU between Australia and Vietnam suggests that Vietnam is prepared to permit its citizens to return and that deportees will be entitled to the same rights as other citizens.
Ultimately, the Tribunal must weigh up the primary and other considerations in coming to a decision. In the Tribunal's view, in Mr Le's case, the greatest weight should be given to the expectations of the Australian community and, in particular to the seriousness of the three deportable offences which Mr Le has committed, the risk of recidivism and the deterrent effect of his being deported. In the Tribunal's view, the protection and expectations of the Australian community outweigh the best interests of Mr Le's daughter, Nina, notwithstanding that she will suffer some emotional hardship as a result of the absence of her father. Nevertheless, in assessing this hardship, the Tribunal takes account of the fact that Mr Le has been in prison for all but eight months of Nina's nine and half years. The protection and expectations of the Australian community also outweigh any hardship that Mr Le and his other family members in Australia may suffer. Thus, the Tribunal concludes that the decision under review should be affirmed.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  25 March, 26 March and 10 May 2002
Date of Decision  2 July 2002
Representative for the Applicant              Ms M Le, Migration Agent
Representative for the Respondent        Mr N Cureton, Solicitor

[2002] AATA 535

2 July 2002

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Deportation Order

Deportable Offences

Discretion of the Tribunal

Constitutional Validity