Luu and Minister for Immigration and Citizenship

[2010] AATA 696

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 696

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2818

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Van Duy Luu

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date13 September 2010

PlaceSydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is AFFIRMED.

....................[sgd]....................

M D Allen, Senior Member  

CATCHWORDS

IMMIGRATION & CITIZENSHIP:  Deportation of non-citizen.  Numerous convictions for petty theft.  Protection of the Australian community outweighing all other factors. 

LEGISLATION

Migration Act 1958, sections 499, 501(2), (6), (7)(c)

CASES

Re Stone v Minister for Immigration & Ethnic Affairs (1980-81) 3 ALN;N81

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

REASONS FOR DECISION

13 September 2010 M D Allen, Senior Member            

1.By application made 9 July 2010, the Applicant sought review of a decision by the Respondent to cancel his class BF Transitional (permanent) visa on the grounds that he did not satisfy the character test set out in section 501 of the Migration Act 1958 (“MA”).

2.Subsection 501(2) MA states:

“The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.”

3.Whereas subsection 501(6) MA states inter alia:

“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)); or
(b) ...
(c) having regard to either or both of the following:

(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;

the person is not of good character...”

4.“Substantial criminal record” is defined by paragraph 507(7)(c) MA as where a person has been sentenced to a term of imprisonment for 12 months or more.

5.In exercising the discretion whether or not to cancel the Applicant’s visa, I am required pursuant to section 499 MA, to take into account any written Directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.

6.Currently the Ministerial Direction in force is No.41, being in force as and from 15 June 2009.  Direction No.41 states that there are four primary considerations to the exercise of my discretion and seven other considerations.

THE CHARACTER TEST

7.There can be no doubt that the Applicant fails the character test as he was on the 19 January 2010 sentenced to an effective period of one years imprisonment, that term commencing on 12 July 2009.

8.The primary considerations in deciding whether or not to cancel a person’s visa are set out as paragraph 10 of Part B of Direction No.41. Those considerations are:

“(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations...”

9.In taking these considerations into account regard must ultimately be had to the objectives of Direction No.41, as set out in paragraph 5.1 of the said Direction, namely:

“(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”

THE PROTECTION OF THE COMMUNITY

10.Clause 10.1 of Direction 41 states:

“(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a) the seriousness and nature of the relevant conduct; and

(b) the risk that the conduct may be repeated.”

11.Whereas Clause 10.1.1(2) gives examples of offences considered to be serious including grievous bodily harm, assault and aggravated assault, I regard the offence of steal from the person as having a degree of aggravation. 

12.The Applicant has a criminal history which includes a series of offences against property.  They are:

Date of Sentence	Charge	Sentence
25.11.09 (sentence appealed and upheld on 19.01.10)	Steal from the Person	12 month sentence, 9 month non-parole
25.11.09 (sentence appealed and upheld on 19.01.10)	Larceny	9 month fixed sentence
25.11.09 (sentence appealed and upheld on 19.01.10)	Possess Goods Suspected Being Stolen	6 month fixed sentence
09.06.05	Larceny	9 month sentence, 6 month non-parole
09.06.05	Steal from the Person	8 month (A1) sentence, 6 month (A1) non-parole
09.06.05	Larceny	8 month (A1) sentence, 6 month (A1) non-parole
19.05.03	Stolen Goods in Custody	4 month fixed sentence
19.05.03	Larceny (2 counts)	8 month sentence, 6 month non-parole

Date of Sentence	Charge	Sentence
12.07.01	Larceny	14 month sentence, 6 month non-parole
12.07.01	Steal from the Person	14 month sentence, 6 month non-parole
13.12.00	Found Premises int Com Felony	2 month fixed sentence
28.02.00	Larceny	6 month fixed sentence
28.02.00	Shoplifting	4 month fixed sentence
05.07.99	Break Enter & Steal (BES) - Burglary	3 month fixed sentence
05.07.99	Goods in Custody	3 month fixed sentence
02.05.96	Unlicensed Driver	3 day (A1) Fine Default
18.03.96	Park Vehicle too far from kerb	1 day (A7) Fine Default
20.02.96	Park Motor Vehicle Contrary to Sign	1 day (A6) Fine Default
01.02.96	Parking Offence – General	1 day (A5) Fine Default
15.03.93	Cross Railway Over Tracks	1 day (A4) Fine Default
09.04.96	Display Exp Registration Label	2 day Fine Default
09.04.96	Disobey Traffic Direction Sign	2 Day (A1) Fine Default
09.04.96	Drive Uninsured Motor Vehicle	5 day (A2) Fine Default
09.04.96	Drive Unregistered Vehicle	5 day (A3) Fine Default
23.07.92	Take Possess Kill Protected Flora.	2 day Fine Default

The Applicant has also been found guilty of a series of traffic offences which although not particularly relevant under the Migration Act do indicate a person who has a disregard of the law.

13.The Applicant’s most recent offence involved the stealing from a women with a child in a stroller.  In sentencing the Magistrate said:

“You committed this second offence, whilst you were on bail for these first offences.  That makes your situation worse. 

Previously the Magistrate had said:

“But this court cannot allow you to continue to make people victims at your hands.  To steal from unsuspecting women, one of them particularly had a baby in a stroller this day, to steal from them is to visit hardship on them that they do not deserve.”

14.As pointed out in paragraph 10.1.1(4)(a) of the Direction, Judicial comments in an individual’s case are factors to be considered.

15.In these proceedings the Applicant tendered a report by Mr William John Taylor, a forensic psychologist.  After taking a history from the Applicant interviewing him and performing a series of tests, Mr Taylor was of the opinion that the Applicant formed a low to moderate risk of re-offending.

16.The Applicant’s history is relevant.  He was born in 1958 being the older child of a family of fishers in the region of Halong Bay in Northern Vietnam.  At the age of 18 he was called up for service in the Vietnamese Army.  As I understand the Applicant’s evidence, he originally resisted his call-up but in 1976 he commenced his service. 

17.Initially he was with a labouring unit sent to Laos to construct an airbase on the Plain of Jars.  Later with his unit he was sent to fight in the Sino-Vietnamese war.  He did that for a period of three months and then he deserted the army, returning to Hanoi where he managed to evade the authorities and supported himself by buying and selling goods in the flea-market.

18.During this time he formed a liaison with a woman and they had a child together.  In 1987 his common-law wife and child were with him when he escaped by boat from Vietnam to Hong Kong where they lived in a refugee camp for about two years.  In 1989 his wife’s sibling sponsored them to come to Australia.

19.In Australia the Applicant found employment operating a sewing machine and then working at a Laundromat.  He remained in employment until 1998.

20.In 1991 the Applicant’s wife left him, taking their child with her.  He states that he does not know the reasons why his wife left. 

21.In 1994 he returned to Vietnam to remarry.   The Applicant’s second wife arrived in Australia about 1996 or 1995, and they lived together for one year.  She then left the marriage.  In his statement he said that a source of friction was that he wanted to have children and she did not.

22.The Applicant started to drink alcohol to excess and gamble after his first wife left him.  After his second wife left him he started to use heroin.  His evidence was he bought it from persons where he worked.  In evidence in chief he said that after he ceased working he was selling drugs and also had to steal to get the money.   In later evidence the Applicant denied he had ever sold drugs and, as his evidence was taken through an interpreter, I do not regard him as having made a distinct admission of dealing in drugs.

23.Since 1999 the Applicant has spent a total of some 45 months in prison for offences of larceny, goods in custody, shoplifting and steal from the person.  Although the Applicant has given his drug abuse as a mitigating factor, it is not generally a factor to be considered in mitigation against the cancellation of a visa.  As was stated by Deputy President Purvis in Re Weti and Minister for Immigration and Multicultural Affairs [2006] AATA 1054 at paragraph 34 there is a greater need to protect the Australian public when a drug habit has led a person to the commission of a crime.

24.I also note that in his report and in his evidence, Mr Taylor stated that currently the Applicant is not clinically depressed and there is no indication that he has any emotional disorder.

25.I can quite understand that when his wives left him the Applicant was emotionally upset however as pointed out in Re Mooi v Comcare (1996) 42 ALD 495 at 499:

“There is a distinction between clinically significant, that is abnormal behaviour in the circumstances of a particular patient and behaviour which, even though unusual, can be said to fall within the range of behaviours that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances.” 

In particular I reject any suggestion, which in fairness it must be said was not pressed in this matter, that the Applicant suffers from a Post Traumatic Stress Disorder (“PTSD”).

26.In his report of 9 August 2010, Mr Taylor said:

“I have formed the opinion that he does have a low-moderate risk of recidivism.  His greatest risk factors appear to be his above average predisposition to engage in substance abuse and his previous problem with excessive gambling.  On the positive side, however, he claims he is motivated to resolve his substance abuse and excessive gambling and he also claims he is motivated for employment”.

27.In regarding the Applicant’s motivation, Mr Taylor referred to factors which reduce the likelihood of recidivism, however these factors are all subjective and are contrary to the history the Applicant has exhibited so far.

28.In addition it is noted that upon his release from his most recent period of incarceration, the Applicant was required to report to the Probation and Parole service.  A report from that service contains the following entries:

“Presentation:  Mr Luu presented for interview at 10am today (6/4/10) smelling of alcohol. He claimed to have consumed “half a beer” the same morning, after a friend arrived from Vietnam.  This claim did not appear consistent with the strength of the odour emanating from him.”

In evidence, the Applicant repeated his story that he had only half a can of beer after a friend had arrived from Vietnam.  I do not accept this evidence and consider that the remarks of an experienced probation and parole officer carry more weight.

29.A further entry in his Probation and Parole file reads:

“Mr Luu submitted himself to a urinalysis test on 20/4/10. Results were positive for Temazepam (unprescribed), Amphetamine & Methyl-amphetamine…  A Breach of Parole Report will be submitted to the State Parole Authority asap requesting a Warning.  Mr Luu has a lengthy history of intermittent Heroin abuse.”

30.In evidence the Applicant stated the only explanation he could give for the presence of amphetamines and Temazepam in his urinalysis was that his friends had spiked his drink while he was watching a football match on television.  Apart from that excuse being risible it does show that the Applicant is associating with people who are want to use illegal substances.

31.In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN, N81, Davies J, sitting as President of this Tribunal, said at N133:

“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…and even if the risk recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm”  (authorities omitted).

32.As to what might constitute a risk of recidivism, the Full Court of the Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1992-3) 112 ALR 198, that there was no inconsistency in finding that a risk (of recidivism) was real, in the sense that it is not far fetched or fanciful, and that the degree of probability of its occurrence is quantitatively low.

33.Compare the remarks of Matthews J in Re Lam & Minister for Immigration and Multicultural Affairs [1999] AATA 56 at paragraph 51, namely:

“Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending”.

34.All in all I am satisfied that given his past conduct and the report of Mr Taylor, together with the Report of the Probation and Parole Service that there is a very real risk that this Applicant will re-offend and that the protection of the Australian Community requires his removal from Australia.

WAS THE APPLICANT A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

35.The Applicant arrived in Australia at the age of 31 years having arrived on 14 September 1989.  This factor then does not apply.

THE LENGTH OF TIME THE PERSON HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA

36.The Applicant’s movement records with the Department of Immigration indicate that the Applicant has been ordinarily resident in Australia for approximately 21 years.  Of that period he has spent some three and a half years in prison.

37.The Applicant’s criminal history indicates that he began seriously offending in 1999 although there are a series of fine defaults prior to that time.  As stated above he has continued to re-offend at frequent intervals since his first conviction.

38.The Applicant has very few ties in Australia.  He is separated from both his first and second wives and has minimal contact with his daughter.  There is nothing regarding this factor which would mitigate against his removal from Australia.

INTERNATIONAL OBLIGATIONS

39.Although the Applicant is a deserter from the Vietnamese Army, it appears that he was able to re-enter Vietnam in 1994 to marry his second wife, which marriage was registered with the local authorities.  He was able to enter and leave Vietnam at that time without let or hindrance, and he was able to bring his wife to Australia.

40.The Third Country Report contained in the so called G Documents indicate that Australia would not be in breach of its refoulement obligations if it were to cancel the Applicant’s visa and return him to Vietnam.

41.The Applicant has a daughter who is now 25 years of age.  There is no evidence of any other child under the age of 18 having any relationship with the Applicant.  Consequently no relevant obligations arise for consideration pursuant to the rights of the child.

OTHER CONSIDERATIONS

Family ties and the nature and extent of any relationships:

42.The Applicant has not spoken to his daughter for over one and a half years.  He said that he had lost her mobile telephone number when he was last imprisoned.  Previously he had spoken to her once or twice a year.  Significantly he added “My daughter does not want to be seen with me at all”.

43.The Applicant has no other family ties in Australia; it was his wife’s siblings who sponsored his entry into Australia.  I see nothing in the nature of family ties and the nature and extent of any relationships which would mitigate against the Applicant’s deportation.

Applicant’s Health:

44.As referred to above, the Applicant has encountered drug and alcohol problems.  There was however a period from 2005 when he did not use drugs for some four years.  As stated above he has no issues regarding his mental health and it is problematical if he would remain drug-free if he remained in Australia.  Although no evidence was adduced in this matter I am aware from a previous matter that drug use in Vietnam is dealt with by way of incarceration and compulsory “drying out” from drug use.  I do not regard the Applicant’s health as providing any factors mitigating against his deportation.

Links to the country where the Applicant would be removed:

45.The Applicant has been resident in Australia for 21 years but does have some contact with siblings in Vietnam, albeit very infrequently.  He last visited Vietnam in 1994.  In his statement he said his siblings would probably support him initially upon his return, but not long term.  I note that he had trained as a fisherman before his enlistment in the Vietnamese army and that the evidence is that his siblings are still fishers in Halong Bay.  In addition I note that he at one time was a trader in flea market in Hanoi and he could return to this sort of activity if unable to obtain work as a crewman on a fishing vessel.

46.As the Applicant’s siblings are still engaged in the fishing industry, he would no doubt find it easier with their assistance to obtain a position in that industry than someone without those contacts.

Hardship likely to be suffered by the Applicant:

47.On the evidence before me there are no mental illnesses present which would render any hardship to the Applicant upon his return to Vietnam. 

Whether the Applicant has been formally advised in the past about consequences of their conduct for migration purposes:

48.The Applicant was apparently notified of the intention to cancel his visa on character grounds in 2002 and 2005.  In 2007 he was given a specific warning which was signed by him.

49.Having been warned of the possibility of deportation in 2005 the Applicant had written to the Department stating:

“I am currently serving my sentences in jail and training to become a better person, a better Australian citizen hoping for a better future. …Lastly, I promise that I would never commit any further offences.”

50.It is quite clear that the Applicant’s promise of never committing any other offences was a hollow one and that in itself is illustrative of the danger of recidivism in the Applicant.

CONCLUSION

51.Having regard to all the matters which I am to take into account, I find that the Applicant is an incorrigible offender and, although his life in Vietnam will not be as comfortable and as easy as it is in Australia, the interests of the Applicant are vastly outweighed by the consideration of the requirement to protect the Australian public.

52.The decision under review is AFFIRMED.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ...................[sgd]......................................
  K. Lynch, Associate

Dates of Hearing  1 & 2 September 2010
Date of Decision  13 September 2010
Counsel for the Applicant               Mr L Karp
Representative for the Applicant    Legal Aid
Solicitor for the Respondent          Ms L Weston, DLA Phillips Fox