Lu and Minister for Immigration and Multicultural Affairs
[2001] AATA 691
•4 July 2001
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V01/585
GENERAL ADMINISTRATIVE DIVISION)
Re: HO SONG LU
Applicant
And MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent
DECISION [2001] AATA 691
Tribunal: Deputy President G.L. McDonald
Date: 4 July 2001
Place: Melbourne
Decision:For reasons given orally at the hearing, the decision under review is set aside, which has the effect of reviving the applicant's transitional permanent visa.
(sgd) Graham McDonald
Deputy President
LU AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Application Nº V01/585
Deputy President G.L. McDonald
Melbourne
Wednesday, 4 July 2001
IMMIGRATION — cancellation of transitional permanent visa — a person not of good character as a result of past criminal conduct — applicant arrived in Australia from Vietnam in 1982 at age 13 — convictions in 1990 for offences involving violence — whether applicant now of good character — insufficient time has passed to find character redeemed — applicant not of good character — exercise of discretion — low risk of recidivism — hardship to Australian citizens — few ties to Vietnam — two and a half years spent in immigration detention in a State gaol — decision set aside.
Migration Act 1958 ss.200, 499, 501(1), (2), 502
Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453
Extempore Reasons for Decision
Mr Ho Song Lu has applied for review of a decision of the Minister for Immigration and Multicultural Affairs ("the Minister") made on 19 October 1998 to cancel his transitional permanent visa under s.501(1) of the Migration Act 1958 ("the Act") on the basis that s.501(2)(a)(i) of the Act applies to Mr Lu in that he is a person not of good character as a result of his past criminal conduct.
Simultaneously with the cancellation of Mr Lu's visa the Minister declared that it was in the national interest for a certificate to issue under s.502 of the Act that Mr Lu be an excluded person. The issuance of the certificate under s.502 would ordinarily have the effect of precluding Mr Lu from appealing to this Tribunal for review of a decision made pursuant to s.501(1) to cancel his visa. However, it is agreed by the parties that in view of the judgment of the Full Court of the Federal Court in Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453 that the certificate is ineffectual. The consequence under the Act, as at the time the Minister's decision was made, is that the decision in respect of which review is sought is reviewable by this Tribunal. Original proceedings commenced in the High Court of Australia have been adjourned by that Court pending this application for review in the Tribunal.
Mr Lu's efforts to remain in Australia have a long and tortuous history that I shall relay as part of the background leading to this application. Mr Lu entered Australia on 11 September 1982 with his parents and seven siblings after escaping from Vietnam by boat and spending approximately seven months in a refugee camp in Malaysia. The records of the Department of Immigration and Multicultural Affairs ("the Department") are unclear as to whether his father arrived as a refugee or pursuant to a special humanitarian programme. In either event, the applicant is noted as an accompanying person of his father.
At the time of arrival in Australia the applicant was aged 13 years, having been born on 15 February 1969. His mother, in an attempt to secure him a better, or at least a longer, education subsequently claimed him as being 4 or 5 years younger than his actual age. Her attempts to secure the best education for him seem to have been, however, unsuccessful. He left school at the age of 19 years. A week after turning 21 he broke into a house, in the company of five or six others, threatened the four occupants, including with a gun and machete, tied them up and stole jewellery and money. The applicant and his accomplices were masked. He was subsequently apprehended by the police, who found some of the stolen property in his bedroom, and charged him with four counts of robbery with an offensive weapon ("the first set of offences").
The applicant was released on bail and, while on bail, on 19 October 1990, in company with another person, he was involved in further offences of breaking, entering and stealing, this time in relation to a shop. This resulted in further charges of three counts of burglary, one count of having housebreaking implements in his possession, and one count of threaten to use an offensive weapon (a wrench) with intent to resist arrest ("the second set of offences"). In relation to these offences, the applicant stated to this Tribunal that he drove a car to the shop and thought his friend was going to buy cigarettes, that he did not know an offence was being committed, but hearing a noise in the shop, he went into the shop to investigate and, when his friend ran from the scene he did as well.
On 25 March 1991 the applicant pleaded guilty to all of the above offences in the District Court of New South Wales. He claims in relation to the second set of offences that his lawyer advised him to plead guilty and additionally he wanted to have all the charges dealt with. Before this Tribunal the applicant is bound by his plea of guilty to the essential elements of the offences and whether or not he may have had a defence, or may not have committed the offences, is not a matter for me to question in these proceedings. In relation to the first set of offences he was sentenced to a minimum term of 6 years 6 months imprisonment with an additional term of 26 months. In respect of the second set of offences he was sentenced to 1 year for each of the offences, to be served concurrently with the head sentence.
In respect of the first set of offences the sentencing judge was unable to determine who amongst the accomplices was armed and sentenced all the participants as being equally culpable. The sentencing judge also recommended Mr Lu and his co-offenders be deported at the expiration of their sentences. On appeal to the New South Wales Court of Appeal the recommendation for deportation was quashed but the sentences were otherwise confirmed.
While serving his sentences in New South Wales prisons, the applicant was convicted on 28 June 1993 of three offences relating to the possession and use of marijuana and fined a total of $1100. On 24 February 1997 he was again convicted for three further offences relating to the possession and use of marijuana and sentenced to one month imprisonment.
I make no finding adverse to Mr Lu for an unconfirmed suggestion that there was an apparently unsatisfactory urine test arising from the time when he was in immigration detention.
On 9 June 1997 an order for Mr Lu's deportation was issued under s.200 of the Act. He appealed that decision to the Administrative Appeals Tribunal ("the AAT"). Deputy President Breen set aside the deportation order on 12 June 1998. The Minister lodged an appeal against the AAT decision in the Federal Court but subsequently discontinued the appeal. The Minister then issued the decision the subject of these proceedings, following which the applicant surrendered to the immigration authorities on 5 November 1998, he having been released on parole on 24 October 1997. Since 5 November 1998 he has remained in immigration detention.
The applicant instituted proceedings challenging the Minister's decision in the Federal Court, the Full Federal Court and the High Court. He had no success aside from the issue relating to the validity of the s.502 certificate, which I appreciate was not dealt with in his appeals, but which is accepted as being a void certificate. Various of what I shall call, for convenience, interlocutory proceedings, were also commenced on behalf of the applicant, one before Dowsett J in the Federal Court and one before Deputy President Forgie in the AAT and I do not need to comment further on these.
The issues now before the Tribunal are as identified in paragraph 3.4 of the applicant's contentions; namely:
(a)is the AAT satisfied that the applicant is — that is at this time — not of good character, having regard to either his past criminal conduct or his general conduct? and
(b)if yes to (a), should the power to cancel his visa is — that is a discretionary power — be exercised?
While not binding on the Tribunal, it is of assistance to be guided by the visa refusal and cancellation direction, Direction Nº 17 dated 17 June 1999, and general direction, General Direction Nº 5 dated 25 November 1997, issued by the Minister under s.499 of the Act and provided to me by the Minister's representative (exhs R4 and R3 respectively). Pursuant to these directions, in particular, the protection of the Australian community is of the utmost importance.
The risk to the community should be assessed, having regard to the matters referred to in clause 2.5 of Direction Nº 17. These matters are the seriousness and nature of the conduct, the likelihood that the conduct may be repeated (including any risk of recidivism), and whether the visa cancellation may prevent or discourage similar conduct (general deterrence). Both sets of offences committed by Mr Lu involved violence or the threat of violence. The seriousness of the offences is reflected in the sentences imposed and is aggravated by the second set of offences being committed while the applicant was on bail for the first set of offences.
The Australian community regards such conduct as unacceptable. Mr Hurley, of counsel for the applicant, submitted that the decision in respect of the applicant's character must be made as at the date of this decision, and that the applicant's evidence, that of the psychiatrist, Dr Curtis, and of the applicant's sister, Elizabeth Lu, pointed to him as having matured, accepted that what he did in 1990 was wrong, and that consequently he should not now be found to be of bad character.
I accept that good character once lost can be redeemed. I am, however, not yet able to accept the applicant has reached this point.
Whilst the applicant did spend a year without any adverse conduct between his release on parole on 24 October 1997 and his placement in immigration detention on 5 November 1998, he has not spent any time in the community without any constraints so as to confirm his resolve to comply with the standards expected in the community. As Mr Hurley submits, the indicators are favourable, even very favourable to the applicant, but his offences were serious and insufficient time has passed for me to be satisfied that he has yet redeemed his good character. I am, however, satisfied that the general discretion contained in s.501(1) of the Act should be exercised in his favour.
The offences were committed when he was a young, immature man. He is, as I have said, now more mature and I believe is now more unlikely to be misled by others. He has expressed what I am satisfied is genuine contrition for his actions and appreciates the adverse impact of those actions on his victims. There is in my mind a low risk of him committing like offences. As Ms Nance, the representative for the Minister, rightly concedes, his removal from Australia is unlikely to act as a general deterrence to others. I am satisfied that rather it is likely to be seen as a capricious act since those of the co-accused who also qualified for cancellation of visas in relation to the commission of the first set of offences, have been warned rather than had their visas cancelled. I appreciate the applicant's circumstances are somewhat different because of the commission of the second set of offences while on bail, but in my view his circumstances are not so distinguishable that he should be singled out for removal from Australia.
His family circumstances are also such that his parents and siblings are now all Australian citizens and supportive of him, as is evidenced by the attendance at the Tribunal of his father, some sisters and brothers, travelling as they have from interstate to be with him at this hearing. They would be adversely affected by his removal.
Further, I am satisfied that while he has some relations on his father's side in Vietnam, he is not, and never has been close to them, such that they could be expected to provide support for him if he was returned to Vietnam.
I am satisfied that the applicant has during his term of imprisonment and period of immigration detention made great steps in the learning of English and participating in sporting and other activities. He was, despite his marijuana convictions, a trusted prisoner in that he was permitted to work outside the prison.
Given the time that he has spent in Australia I am also satisfied that he identifies more with this country than with Vietnam.
He has a job offer from his sister who runs a restaurant. He has also established what promises to be a steady relationship with a girlfriend introduced to him by another sister.
I also take into account the fact that the applicant has spent more than two and a half years in immigration detention and that this time has been spent in a State prison rather than in a Commonwealth Migration Centre. The evidence leaves me satisfied, because he is not a person serving a sentence in the gaol, that his options, for example, for participating in courses, have been more limited than if he had been serving a sentence of imprisonment. I accept he has effectively served a further two and a half year sentence in relation to the offences he has committed. It is a level of his maturity that he accepts this without apparent rancour. He has, in my view, borne what must be regarded as unduly harsh treatment with fortitude and I take into account, in addition to the matters raised in the Minister's directions, when considering the exercise of the discretion contained in s.501(1) of the Act, the circumstances surrounding his two and a half year immigration detention.
I note the affidavits of Mr Okey from the Department (exhs R1 and R2) that Australia now has signed a Memorandum of Understanding with the Government of the Socialist Republic of Vietnam concerning refoulement of persons who no longer have a right to remain in Australia. It forms no part of my decision in this matter but some concern exists over the time that it may take to implement any removal decision.
I do not find it necessary to decide the issue of whether the applicant should be regarded as a refugee or not, although I think it unlikely that as an accompanying child he could be so regarded.
Bearing in mind all of the above, I am satisfied that the Minister's decision of 19 October 1998 should be set aside. That has the effect of reviving the applicant's transitional permanent visa and that is the decision of the Tribunal.
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