Lu and Minister for Immigration and Citizenship
[2008] AATA 93
•5 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 93
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5636
GENERAL ADMINISTRATIVE DIVISION )
Re Van Tot LU
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date5 February 2008
PlaceSydney
DecisionThe decision under review is affirmed.
…………[sgd]………………………...
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – applicant’s visa cancelled by delegate for failing the character test – applicant has been convicted of numerous offences including assault occasioning actual bodily harm, supplying heroin and demanding money with menaces – applicant is currently on remand on several charges including causing wounding and grievous bodily harm with intent to murder – applicant received several warning notices of possible visa cancellation – applicant continued to offend after receiving warnings – evidence points to a high risk of recidivism – other considerations examined – primary considerations of community protection and expectations outweigh the other considerations in this case – decision under review is affirmed.
…
RELEVANT ACT/S:
Migration Act 1958: ss 200, 500(6B), 500(6H), 500(6J), 501, 501(2), 501(6), 501(7), 501G
CITATIONS
Goldie v Minister for Immigration & Multicultural Affairs [2001] FCA 1318
Re Broadbent and Minister for Immigration and Multicultural Affairs [2000] AATA 822
Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024
Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87
Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780,
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81
Al-Kateb v Godwin (2004) 219 CLR 562
Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Robtelmes v Brenan (1906) 4 CLR 395
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Hong Teng Ung and Minister for Immigration and Multicultural Affairs [1998] AATA 833
…
OTHER AUTHORITIES
Direction No 21
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REASONS FOR DECISION
5 February 2008
Professor GD Walker, Deputy President
Basic facts
1. The applicant Mr Van Tot Lu was born on 18 March 1973 in Vietnam and is a citizen of that country. He has never been married, has no children and is not in a de facto relationship. He first entered Australia on 7 August 1987 as the holder of the K4671 special humanitarian visa at the age of 14. He was accompanied by his sister, brother-in-law and niece. He currently holds a transitional (permanent) visa class BF.
2. Between September 1989 and August 2005, he was convicted of numerous offences including assault, stealing, assault occasioning actual bodily harm, assault with intent to rob in company, supplying heroin, demanding money with menaces, intimidating police officers, breaking and entering with intent to steal, and possessing implements to enter or drive a conveyance. He was sentenced to approximately 20 terms of imprisonment totalling over 23 years, although many of the terms were served concurrently.
3. On four separate occasions he was sentenced to terms of imprisonment of 12 months or more, including:
(a)16 months for supplying heroin on 21 March 1994;
(b)three years for four counts of demanding money with menaces and for assault on 3 November 1995;
(c)16 months for supplying a prohibited drug on 6 August 1999;
(d)12 months for possessing implements to enter or drive and conveyance, and custody of a knife in a public place on 2 October 2001.
4. He is currently on remand at Parklea Correctional Centre, New South Wales, on several charges including causing wounding and grievous bodily harm with intent to murder.
5. By letter dated 19 July 1996, the Department of Immigration and Ethnic Affairs informed the applicant that as a result of his convictions he might be liable for deportation pursuant to s 200 of the Migration Act 1958 (the Act) (G p74).
6. Apparently no action was taken at that time, and the applicant went on to commit approximately nine further offences, before a notice of intention to consider cancellation of his visa was sent to him by the department on 31 January 2003 (G pp75-76). A second notice was sent to him on 7 March 2006. Through the Cessnock Correctional Centre welfare officer, the applicant asked for an extension of time to respond to the notice until 3 May 2006 (G p77).
7. On 18 December 2006, a third notice dated 14 December 2006 was personally served on the applicant by acting sergeant Bristow of Berri Police, South Australia. The applicant appears to have endorsed a receipt on a copy of the letter.
8. A delegate of the minister cancelled the applicant's visa pursuant to s 501 of the Act on 30 September 2007, and the applicant was notified of the decision by letter dated 23 October 2007 (G pp6-7). The applicant signed an acknowledgment of receipt of the cancellation letter and accompanying documents dated 19 November 2007. A note signed by a witness attests to the service of the documents on him by hand (G p8).
9. The applicant applied to this tribunal for a review of the delegate's decision on 21 November 2007. The applicant set out a number of grounds for his application, including that he suffers from medical conditions that would be treated better in Australia than in Vietnam, that he has closer family ties in Australia than in Vietnam, has spent many years here and is familiar with Australian culture. The application notes that he had legal aid to assist him with the preparation of the application.
The hearing
10. At the hearing, Mr Anthony Orford of Clayton Utz Lawyers represented the respondent and the applicant appeared in person. A Vietnamese interpreter was sworn in to assist him to give evidence and to follow the proceedings. The documents 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 other documents tendered by the parties at the hearing.
11. At the telephone directions hearing held 17 December 2007, the tribunal stressed to the applicant that because of the operation of ss 500(6H) and (6J) of the Act, it was essential that he serve written statements, setting out the information on which he intended to rely at the hearing, and any other documents at least two business days before the date of the substantive hearing. It was pointed out to him that it was particularly important to serve a statement containing his own intended evidence, and that such statement need not be in any particular form and could be hand-written.
12. When after a few weeks the applicant had not served any statements or documents, my associate, Ms Wallace, on 7 January 2008 sent the applicant a fax and a letter setting out the effect of s 500(6H) and giving a fax number for the documents to be sent to the respondent’s representative. Ms Wallace also spoke to welfare officers explaining the importance of the applicant serving statements and documents by 17 January 2008 and left a number of reminder messages. Nevertheless, no statements or other evidence were served on the respondent.
13. At the hearing, the applicant said he had not received the letter of 7 January 2008 (Exhibit R2) until the previous Friday (18 January), but admitted that he had received the fax of 7 January. He said that in view of the severity of the possible consequences of the proceedings, he would like more time to prepare appropriate documents and said that he would like to have a month to do so.
The operation of ss 500(6H) and (6J)
14. I treated the applicant’s request as an application for an adjournment, but pointed out that adjourning the proceedings for a month would take the matter well beyond the 84th day after notification of the decision (11 February 2008), on which date the cancellation decision would have been deemed to be affirmed (s 500(6L)).
15. In opposing the application, Mr Orford referred to the cases interpreting ss 500(6H) and (6J).
16. In Goldiev Minister for Immigration & Multicultural Affairs [2001] FCA 1318, the Full Court of the Federal Court had explained that the purpose of those provisions was to give the minister an opportunity to answer the case to be put by the applicant without the necessity of an adjournment of the hearing. The purpose was that a review applicant should not be able to change the nature of his or her case, catching the minister by surprise and forcing the tribunal into granting one or more adjournments to enable the minister to meet the new case put. The expressed intention of the bill was to prevent the use of merits review to prolong the stay in Australia of a person denied a visa (at para 25).
17. In Re Broadbent and Minister for Immigration and Multicultural Affairs [2000] AATA 822, Deputy President Chappell pointed out that the provisions take no account of the possibility that new contentions might arise in the course of a hearing:
… It might be thought that one way of remedying that situation would be to adjourn the matter for several days to enable a written statement to be prepared and served on the respondent, as was suggested in the present case. However, quite apart from the relentless ticking of the decision making clock which cannot be stopped for any reason, including inappropriate or unconscionable actions on the part of the respondent, the wording of the section would seem to envisage that once the hearing has commenced no such written statements can then be filed no matter what new circumstances or evidence may arise (at para 63).
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18. Deputy President Forgie in Re Carmichael and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1024 made it clear that “information” to be set out in a written statement pursuant to s 500(6H) referred to a person’s knowledge about facts or about a particular subject matter presented in support of an applicant’s case:
… It is not a reference to the topics on which a person has knowledge about those facts or that subject matter. … Forewarning of the topics alone without the detail does not give the Minister that opportunity [to respond to the applicant’s case] (at para 50).
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19. An applicant may, however, in examination-in-chief explain or amplify material in the written statement and that information can be tested by cross-examination. Information elicited in that way can be used in support of the applicant’s case (Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 at para 5).
20. The cases are usefully summarised by Deputy President Jarvis in Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202 at pp210-212. In so doing he noted that an adjournment would not be an appropriate way of overcoming any problems presented by s 500(6H) because the section envisages that once the hearing has commenced, no statements can be filed no matter what new circumstances or evidence may arise. In the present case the hearing had indeed commenced.
21. According to the authorities, therefore, the applicant, having lodged no witness statement, could in his evidence in chief only amplify or explain material already contained in the G documents, including his criminal history and his personal details form (G pp106-112).
Issues
22. The issues in this case are:
(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,
(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
Relevant law and policy
23. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter is paragraph (a):
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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));
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24. “Substantial criminal record “ is defined in s 501(7)
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(7)For the purposes of the character test, a person has a substantial criminal record if:
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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
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25. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this 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.
26. 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 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.
Evidence at the hearing
27. Invited to comment on his criminal history, the applicant said that the offences had occurred when he was younger, immature and aggressive. He had no adult guidance when he was young but had wanted to be a good citizen. He denied having intimidated police and denied demanding any money with menaces. He admitted it was a case of extortion but said it arose out of an argument in which he struck the person, who for that reason concocted the story about the demand. It was his friend who had done the demanding. He had himself only asked to borrow money. An argument and the assault had ensued. He then said it was not extortion and it happened a long time ago. He said he had not pleaded guilty to demanding by menaces, but only to assault. He had been in custody on remand for months and his solicitor had told him he would receive only a few extra months if he pleaded guilty, so he agreed.
28. While in prison he worked and undertook courses on drugs and alcohol, English and computers. His experiences in prison convinced him that he no longer wanted to be involved in that type of life.
29. He has a sister living at Bonnyrigg and last saw her just before Christmas, before his arrest. She does not visit him at Parklea. Occasionally he telephones an uncle in Melbourne. He then said he sees his sister once a month or once every few months. He has his mother and brothers in Vietnam.
30. Notwithstanding the statement in his personal details form (G p109), he had not undergone an operation on his head, though he might have sustained some minor head injuries. His leg had, however, been operated on a long time ago in 2000 or 2001. These days he sometimes suffers from headaches or feels cold and has had daily medication for headaches and to reduce tension.
31. He said he has work skills in restaurant work and construction, including plastering, bricklaying and carpentry, having worked in those areas in jail. He also has skills in welding and steel manufacturing.
32. He said he had known nothing about the plan to cancel the visa until a few minutes previously, when the hearing in the tribunal had begun. He would like to be a good citizen and wanted to change. His mother and brothers are in Vietnam, but the communist government was against his family and would have a particular hatred for him. He does not know how he would manage in Vietnam. More importantly, he is now older and understands life better.
33. In cross-examination he said that after his sister had married, he did not get on with her husband, and so for that reason had to move out of the house he had been sharing with them. After that he would occasionally see her, not when he was in jail, but at other times as regularly as possible.
34. His appearance before the local court at Berri, South Australia, arose because while working in Adelaide, he became involved in an argument and struck the other party a few times, but it had been “nothing much”. The case had been adjourned but the magistrate had indicated that he would be likely to incur only a fine. He had left South Australia before the matter had been finalised to visit Sydney for Christmas and New Year, but had not returned to South Australia because he had been arrested.
35. He acknowledged receiving the notice of intention to consider cancellation dated 14 December 2006 from Berri police but said he had not been told anything about cancellation. He acknowledged signing the receipt for the notice on 18 December 2006 (G p82) but repeated that no-one told him that the department was considering cancellation.
36. He then said he had read the notice and had understood it, aided by an explanation of the contents by a friend. He admitted that he had understood the contents but had thought only that the department had the intention to cancel the visa and had not actually cancelled it.
The applicant’s submissions
37. The applicant said that he did not agree with the reasons for cancellation and denied having received three or four notices of intention to consider cancellation. He was unaware of the seriousness of the notices.
38. Previously he had done things that many young people might do, such as becoming involved in fighting and the like. He had not appreciated the seriousness of his offences. To him they were the pranks of a young person.
39. He did not know how he would live in Vietnam or what life would be like. Even when he had received the notice in South Australia, he thought it was simply about an intention to cancel the visa, and that the visa had not actually been cancelled. He had always intended to be a good person in Australia. In Vietnam he would be like a dead person, especially with the communist officials trying to harm him.
Application of the Law and Findings of Fact
40. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record. The application of the character test is by reference, first, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
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The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
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In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
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The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
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41. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).
42. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
43. The applicant at the hearing did not concede that he does not pass the character test because of his “substantial criminal record” within s 501(7), although he had already conceded the point in his personal details form (G p110). Given that he was sentenced to imprisonment for 12 months or more on four separate occasions, the point is beyond dispute.
44. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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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.
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45. Paragraph 2.3 sets out the primary considerations:
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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.
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Paragraph 2.4 explains:
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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.
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46. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
47. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.
Protection of the Australian Community
48. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(a) that dealing in drugs such as heroin, and in paragraph 2.6(f) that crimes of violence against persons, are to be treated as very serious. In this case, the applicant has been convicted of assault, assault occasioning actual bodily harm, assault with intent to rob in company, demanding money in company with menaces with intent to steal, all offences involving violence or the threat of it. He has also been convicted of supplying heroin and his other convictions include breaking and entering with intent to steal. He has been sentenced to approximately 20 terms of imprisonment totalling over 23 years, although many of the terms have been served concurrently. His conduct can only be viewed as very serious.
49. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). The applicant has offended repeatedly over a period of at least 15 years, commencing two years after his arrival from Vietnam. He continued to offend after having been warned by the respondent in July 1996 that he might be liable for deportation under s 200 of the Act by reason of his criminal convictions (G p74). After being again warned on 31 January 2003 that he risked removal from Australia by reason of his criminal history, this time pursuant to s 501(2) of the Act (G pp75-76), he wrote in his response that “I have learnt from my mistake and will not do this mistake again” (G p111). Since then he has been sentenced to terms of imprisonment totalling over 30 months. Magistrate Brown in his sentencing remarks of 5 August 2005 told the applicant he was recommending him for deportation (G p69). He is currently awaiting trial on very serious charges.
50. A pre-sentence report in June 1995 (G pp71-73) found him to be unreliable as regards co-operation with the probation service and there is no evidence to suggest that his behaviour has improved since. He denies liability for some of his more serious convictions and claims that he did not plead guilty to demanding property by menaces, when it is clear from Goldring J’s sentencing remarks that he did (G p59).
51. He attempts to minimise the significance of his criminal record, dismissing it as consisting of the “pranks” of a young person. His sentence administration report (Exhibit R1, annexure) shows that during his periods of incarceration in New South Wales he has committed a total of 32 corrections centre offences, including in more recent times. Thus in 2001, he was convicted of assaults and in 2005 of drug offences.
52. All the evidence points to a high risk of recidivism. Further, as much of the applicant's conduct has been drug-related or has involved violence or the threat of violence, if he does re-offend, he may cause great harm. President Davies J noted the importance of that factor in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81.
53. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
54. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
55. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”. Visa cancellation in the present case can reasonably be expected to contribute to deterring other non-citizens who might be contemplating criminal activities.
Expectations of the Australian Community
56. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
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57. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47). Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
58. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
59. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).
60. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
61. In my view the community would expect that the visa of a person with such a serious and sustained criminal record, is assessed at being high risk of re-offending and who shows little evidence of rehabilitation should be cancelled. While some compassion would be felt for the applicant because he has lived in Australia since the age of 14, the majority of the community would expect to be protected from such conduct by a non-citizen and that notwithstanding his long absence from Vietnam his visa should be cancelled.
The Best Interests of the Child
62. The applicant has no children and there is no child whose interests need to be considered under this heading.
Other considerations
63. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
64. The applicant is not married or in a de facto relationship. He has a sister living at Bonnyrigg but does not get on with her husband. He does see his sister at varying intervals but she has not visited him in jail. At the hearing he said he occasionally telephones an uncle who lives in Melbourne, but he has not previously mentioned that relative (G p107). His mother and brothers are still living in Vietnam.
65. It is therefore unlikely that the applicant’s family would experience any disruption or suffer hardship as a consequence of his removal, and indeed it might present an opportunity for him to resume contact with his mother and brothers.
66. He is currently on remand in Parklea Correctional Centre on several serious criminal charges and may possibly still have some outstanding minor charges pending in South Australia.
67. As was noted above, there is little evidence of rehabilitation. His work experience in Australia is very limited. He worked as a factory hand for employers whose names he has forgotten for six to eight months in 1990, and four to five months in 1994 (G p110). For the rest of the time when not in custody, he appears to have been living on unemployment benefits (G p110). There is no evidence of recent good conduct.
68. The fact that he has been living in Australia since 1987 when he was aged 14 is an important consideration, but as President Mathews J noted in Re Hong Teng Ung and Minister for Immigration and Multicultural Affairs [1998] AATA 833, the overriding consideration, as stressed in the policy direction, is the need to protect the community against the criminal behaviour of non-citizens. He was warned about the possibility of deportation in 1996 and three notices of intention to consider cancelling his visa were served on him between 2003 and 2006. His claim that he did not realise that the current proceedings were about possible visa cancellation until the hearing in the tribunal began is not credible and is contradicted by his own evidence that he understood the contents of the notice of intention served on him at Berri in December 2006.
International obligations
69. In his oral evidence the applicant said that Vietnam’s communist government was against his family and would have a particular hatred for him. As he had not previously made such a claim, that evidence is excluded from consideration by s 500(6H) of the Act. Further, the International Obligations and Humanitarian Concerns Assessment dated 19 September 2006 (G pp86-101) noted that the applicant had not expressed a fear of returning to Vietnam (G p89). Under a memorandum of understanding between the Commonwealth and the Vietnamese government signed on 15 June 2001, Vietnam had agreed to accept criminal deportees in accordance with Vietnamese and international law and had also agreed to facilitate their return (G p90).
70. The Department of Foreign Affairs and Trade was unaware of any instances of criminal deportees being imprisoned, tortured or executed for criminal offences committed in Australia, including drug-related convictions, on return to Vietnam. Nor was there any indication that the applicant had undertaken any political or other activities in Vietnam or Australia that might result in adverse attention on return (G p91). There is consequently no reason to conclude that cancelling the applicant's visa would be inconsistent with Australia’s international obligations.
71. The primary considerations of community protection and expectations outweigh the other considerations in this case.
72. The decision under review is affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ………………………[sgd]…………………………….
R. Wallace, Associate
Date/s of Hearing: 22 January 2008
Date of Decision: 5 February 2008
Solicitor for the Applicant: Self
Solicitor for the Respondent: Mr Anthony Orford, Clayton Utz Lawyers
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