Mai and Minister for Immigration and Multicultural Affairs - [2000] AATA 786

DECISION AND REASONS FOR DECISION [2000] AATA 786

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/793

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CUONG NGOC MAI
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date7 September 2000
PlaceSydney

Decision      The decision under review is set aside and the matter is directed back to the Minister with a direction that Mr Mai not be deported.
  (Sgd Dr D Chappell)
  ..............................................
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – criminal deportation – citizen of Vietnam – entry into Australia age 12 – refugee from Vietnam – convictions for drug related offences – history of drug use and dependence – prior warning with regard to possible deportation - consideration of seriousness of the offences – not abhorrent in the sense envisaged by the policy direction – risk of recidivism high – some prospect for rehabilitation – consideration of deterrent factor – little general deterrent value – consideration of hardship – applicant's family Australian citizens - consideration of conditions in Vietnam – applicant has virtually not ties to Vietnam - prospect for rehabilitation in Vietnam minimal – applicant would suffer severe hardship in Vietnam – applicant's formative years spent in Australia – consideration of the expectations of the Australian community – Australian community should not be exposed to further risks – weighing of factors against deportation – decision set aside
Migration Act 1958 s 200
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
Hong v Minister for Immigration and Multicultural Affairs [2000] AATA 634
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Danionel Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713
New South Wales Drug Misuse and Trafficking Act 1985

REASONS FOR DECISION

September 2000 Dr D. Chappell, Deputy President

Mr Cuong Ngoc Mai, the applicant, seeks review of a decision of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s200 of the Migration Act 1958 (the Act), to deport him from Australia. The Tribunal's jurisdiction to review that decision is granted by s500(1)(a) of the Act.
Mr Julian Van Aalst, of counsel, represented Mr Mai on a pro bono basis at the hearing. Mr Mai appeared in person and gave personal testimony to the Tribunal. The Tribunal was assisted by the help of an interpreter, Ms Anna Nguyen. The following witnesses also testified on Mr Mai's behalf:
Tung Ngoc Mai
Truynh Huynh
Mr Jennan Ambikapathy, a departmental advocate, represented the respondent at the hearing. The following witness also testified on behalf of the
respondent:
Dr Robert David Lewin
The Tribunal had before it documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act 1975 (the T and S documents). The Tribunal received no exhibits.
CHRONOLOGY OF EVENTS
The following facts and chronology of events, which led to the present proceedings, were not a matter of dispute between the parties. Mr Mai was born in Vietnam on 1 October 1973. Mr Mai's father, Long Ngoc Mai, arrived in Australia as a boat person from Vietnam in 1978 (T: 63). At the time of Mr Mai's father's arrival the applicant, his brother and sister, were still living in Vietnam with their mother. The applicant's mother died in 1983. Mr Mai's father then sponsored his children's entry into Australia under what was known as the Orderly Departure Program. Mr Mai arrived in this country on 2 April 1986, at the age of 12 years.
Following his arrival the applicant lived for a period of time with his father. Mr Mai's father then became further estranged from his three children, and in 1989 he returned to Vietnam and remarried.
At the time of his father's departure, Mr Mai went with his brother and sister to live with his uncle and aunt. It is also apparent that Mr Mai was homeless for a period of time. In an interview with the Department in 1993, it was noted that Mr Mai "Lived at Cabramatta … on railway station … no fixed address" (T: 38). Mr Mai was also uncertain whether his father would ever return to Australia (T: 40).
Mr Mai completed an English language course for non-English speakers shortly after arriving in this country. In 1987, Mr Mai entered school. He changed schools a number of times before leaving the New South Wales higher education system altogether, having failed to complete year seven (T: 40).
Mr Mai's first contact with the criminal justice system occurred during 1991. That contact consisted of a conviction at Fairfield Local Court in Cabramatta for an offence of robbery in company. Mr Mai was sentenced to a fixed term of three months in custody (T: 100). Mr Mai's subsequent list of criminal convictions is shown in Attachment 1. In 1992 Mr Mai was convicted of the offence of steal from a person for which he received a community service order (T: 100). Mr Mai breached the terms of that order and was sentenced to a further three months in prison (T: 101). On 13 April 1993, Mr Mai was convicted of supplying a prohibited drug (heroin) and sentenced to a period of imprisonment totalling 12 months (T: 101).
That conviction constituted Mr Mai's first deportable offence. On 12 July 1993, the Department advised Mr Mai that he was to be considered for deportation (T: 24-25). The respondent's officials prepared a report concerning Mr Mai's eligibility for deportation (T24). On 11 January 1994, the Department issued Mr Mai with a warning that further offending would lead to reconsideration of his deportation to Vietnam (T: 79).
On 26 March 1997 Mr Mai was convicted in Fairfield Local Court, Cabramatta of supply heroin and was sentenced to a minimum term of nine months, with an additional term of six months imprisonment. This sentence was then varied in Campbelltown District Court to a minimum term of six months with an additional term of nine months (T: 147). Following this conviction the respondent's officials again prepared a report concerning Mr Mai's eligibility for deportation (T47). The report noted that Mr Mai's length of lawful permanent residence prior to the commission of the second deportable offence was nine years and seven months. The report also noted the following factors weighing in favour of or against deportation:
FACTORS IN FAVOUR OF DEPORTATION
(i) His previous consideration for deportation.
(ii) His criminal history
(iii) The serious nature of his current offence.
(iv) His risk of recidivism being assessed as high.
(v) His lack of contribution to the Australian community.
FACTORS AGAINST DEPORTATION
(i) Mr Mai came to Australia at…twelve years of age. He has no family in Vietnam, apart from an elderly grandmother, and he may suffer a degree of emotional and financial hardship adjusting to life in that country.
(ii) Mr Mai's family may suffer a degree of emotional hardship.
When assessing the above factors, the extent of Mr Mai's drug related criminal history must weigh heavily against him. Successive Immigration Minister's have highlighted the seriousness of the drug trade in Criminal Deportation Policy. In addition, the evils of the drug trade have been consistently condemned by the Courts.
Whilst Mr Mai's motivation for his crimes was his own drug addiction, the harm and misery the heroin could have caused on the streets cannot be under estimated.
Another important factor which weighs very heavily against Mr Mai is the fact that he committed his most recent offence after receiving a warning in relation to his liability for deportation.
In light of the above it is submitted that the factors in favour of you ordering the deportation outweigh those against.
(T: 155)
Based on the review the respondent's officials recommended to the Minister's delegate that Mr Mai should be deported. On 4 November 1997 the Minister's delegate, Mr Mark Anthony Sullivan, ordered Mr Mai's deportation. Mr Mai received a copy of the deportation order on 19 May 1998. On 6 January 1999, Mr Mai sustained another conviction for possess prohibited drug for which he received an $800.00 fine. On 29 June 1998 Mr Mai lodged an application with the Tribunal (T1) for review of that decision.
LEGISLATION AND POLICY
Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies. A non-Australian citizen who has been in Australia for a period of less than ten years in aggregate, and has been convicted for an offence for which he or she has been sentenced to imprisonment for not less than one year, is liable to be deported (s201). It was not a matter of dispute that Mr Mai's conviction on a number of offences including two counts of possess prohibited drug and two counts of supply prohibited drug made him liable to deportation within the provisions of the Act.
When Mr Mai was convicted of the deportable offences, guidance as to the exercise of the discretion under s200 of the Act was to be found in Australia's Deportation Policy issued by the then Minister on 24 December 1992 (the Policy). On 21 December 1998 the current Minister issued a new General Direction under s499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation Under Section 200 of the Migration Act 1958: General Direction – Criminal Deportation – No.9" (the Policy Direction). This Policy Direction was signed by the Minister on the date of its issue and superseded the previous Policy of 24 December 1992. Given this situation, it was not a matter of contention between the parties that it is the Policy Direction that requires consideration by the Tribunal in addressing the issues involved in Mr Mai's case.
As the Tribunal has already indicated in a number of decisions published since the issue of the new Policy Direction it must, as a matter of law, give this document significant weight. A Ministerial Direction under s499 of the Act stands on a very different footing from general statements of policy as to the exercise of administrative discretion, such as the one formerly providing guidance on deportation matters. The nature of this distinction is made apparent in the following passage taken from the Full Federal Court decision in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238 (hereinafter Rokobatini):
The locus classicus on the part that government policy may play in merits review remains the joint judgment of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 418-422. Their strictures emphasise the importance of ascertaining, as a threshold question, whether the decision maker is under a statutory duty to regard itself as bound by government policy. In the present case s499(1) of the Act was such a specific statutory provision.
(per Whitlam and Gyles JJ at paragraph 12)
The Full Federal Court in Rokobatini also gave consideration to the way in which the Tribunal should give effect to the new Policy Direction. Whitlam and Gyles JJ in their joint judgment noted that this:
… brings into sharp focus the content of the Policy compared with the Direction. In considering this question, it should be borne in mind that the direction is not simply a list of relevant matters, it describes a process of decision making. The Policy has the same effect. Plainly, the text of each is quite different as, in our opinion, is their effect. The Minister, for example, submits that the Direction is 'tougher' than the Policy. Even if that is so (and it is a matter of debate) that illustrates the fact that it is impossible to equate one process with the other, or to assume that the outcome of following one will be the same as the outcome of following the other.
(paragraph 18)
Like its predecessor, the new Policy Direction makes it clear that the primary purpose of deporting a person from this country is to ensure the safety and welfare of the Australian community, and to exercise a choice on behalf of that community as a whole as to who should be allowed to remain within it (Policy Direction: paragraph 4). The new Policy 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. Two primary considerations to which a decision maker should have due regard are:
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.
(Policy Direction: paragraph 6)
Only the first of the primary considerations mentioned in the new Policy Direction have relevance to Mr Mai's case since it was not contended that he was involved in any parental relationship. Thus attention needs to be given only to the guidance contained in the new Policy Direction concerning the way in which decision makers should have regard to the expectations of the Australian community as a primary consideration. The Policy Direction states in part, that:
… There are two aspects to community expectations:
the expectation that the community will be protected and not put at risk; and
the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
(Policy Direction: paragraph 8)
The Policy Direction also states that three factors are relevant to an assessment of the level of risk to the community and the need for its protection:
the seriousness and nature of the crime;
the risk of recidivism; and
the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
(Policy Direction: paragraph 10)
Given the importance and relevance of the three factors which have just been listed, attention is now turned to the evidence before the Tribunal in relation to each. Following this review the evidence is examined concerning certain other factors which the Policy Direction indicates require consideration by the Tribunal.
EVIDENCE
Seriousness and Nature of the Crime
Only scant information was made available to the Tribunal concerning the circumstances surrounding any of the offences committed by Mr Mai throughout his criminal career, including deportable offences. The Tribunal did have before it the transcript of proceedings for the trial of Mr Mai in Fairfield Local Court in Cabramatta relating to Mr Mai's first deportable offence. In that matter the magistrate was recorded as stating the following:
….Well Mr Mai these are serious matters. Supplying heroin. And of course you were on bail to the district court for doing the same thing after being sentenced to imprisonment. Now I can't say whether, I can't comment on what happened at Liverpool because I didn't hear the submissions or the pre-sentence report. I don't even know whether you were suitable for alternatives to imprisonment. But you were sentenced to three months hard labour from October last year until January 1993 on a breach of community service order, so you wouldn't have been eligible for a cso. And of course in February just shortly after getting out of jail you were convicted of supplying heroin… without knowing the specifics of the case I can't comment further. But having been released on bail on the six month sentence for supplying heroin – straight away virtually, well certainly within a couple of months, you were supplying heroin again. And supplying it for money, possibly to feed the drug habit. Probably that's the situation. But after looking at your record and all of the circumstances there simply is no alternative to full time imprisonment. People are dying in the streets of heroin overdoses. There can't be more serious matters come before these local courts than supply heroin. And people's lives are being destroyed by heroin and you're of sufficient age to realise that selling heroin is just worsening the problem. I'll bear in mind the plea of guilty and the matters raised by Miss Jones [Mr Mai's representative] on your behalf. The decision of the court in relation to the supply heroin is that you are sentenced to nine months hard labour… additional three months subject to probation and parole supervision….
(T: 23)
The Tribunal also had before it the judgment of Judge Tupman, of the New South Wales District Court, in Mr Mai's appeal against the severity of the sentence handed down to him in Fairfield Local Court, Cabramatta for the conviction of supply heroin in 1997. It was this conviction which led to the issue of the deportation order, and the present proceedings before this Tribunal. Mr Justice Tupman's judgment stated in part:
…
The facts are that the appellant [Mr Mai] supplied two small balloon packages of heroin to an undercover police officer in John Street Cabramatta on 21 March 1997 in return for sixty dollars.
The appellant pleaded guilty at the first opportunity. The appellant has a significant criminal history, including convictions for similar offences which have led to periods of imprisonment, two in 1993 and again in 1995. The appellant was also given the benefit of recognizance under Section 558 of the Crimes Act in March 1995, with a bond of two years being imposed for the offence of possession of a prohibited drug, in fact that bond came to an end just five days before this offence was committed.
The appellant is clearly a heroin addict and had been I accept for some four years, although there have been some times when he has not used heroin. He claims to have withdrawn from using heroin since going into custody. The appellant claims that on his release from custody on this occasion he intends to change his life. It can only be said that at twenty three years of age, if the appellant does not change his life in relation to heroin at this stage it is highly likely that the appellant's life will be much shorter than it might otherwise have been.
The appellant has in the past attempted to use community help projects for Drug and Alcohol counselling and has used the benefit of supervision from Probation and Parole Service, both during the course of the bond and whilst on parole on earlier occasions. He appears to be prepared to cooperate with the authorities in this regard, although so far none of this has been able to cure his need for heroin.
I am prepared to give the appellant an opportunity to make good his words to the Court. It seems to me, however, that the overall sentence of fifteen months, given the appellant's criminal record for the same offences is an appropriate sentence but I am prepared to find and I do find special circumstances to break the statutory nexus between a minimum and an additional term, so that the appellant can be given the opportunity to rehabilitate himself in the community with the supervision of the Probation and Parole Service and with regular attendance at Drug and Alcohol Counselling.
(T33)
During the course of giving his personal testimony to the Tribunal Mr Mai did not dispute these facts or challenge the validity of any other aspect of his criminal record. He said that his involvement in the supply of drugs had been solely to maintain his own heroin addiction. When asked why he went back onto heroin after
being released from gaol, Mr Mai said:
Because I got nowhere – I don't know what to do, you know and I got – sometimes I think about my family, you know that and I need someone I can talk with, I've got no-one to talk with like my family. I need someone to care about me, you know, but then after that I feel sorry about myself---
(transcript 5 June 2000: 28)
Risk of Recidivism
Policy Direction
Paragraph 13 of the Policy Direction provides guidance to decision makers about the factors which should be considered when assessing the risk of recidivism. The Policy Direction makes it clear that a person's previous general conduct and total criminal history are highly relevant to assessing this risk. In particular, the following factors will also be relevant to that assessment:
the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
(Policy Direction: paragraph 13)

Warning

It was contended by the respondent that Mr Mai had received a warning from the Department about the possibility of deportation prior to the commission of further offences including a further deportable offence. That warning was issued on 11 January 1994 and Mr Mai's signature on the warning indicates his acknowledgment of that warning (T28).
Criminal Record
It was also contended by the respondent that Mr Mai's history of criminal offending, dating back to 1991 when he was first convicted of an offence, did bring him within the parameters of paragraph 13(b) of the Policy Direction. As noted earlier, Mr Mai did not dispute the nature of his criminal record.
Performance in Prison
At the time of re-considering Mr Mai's liability for deportation the respondent's officials obtained a report from the New South Wales Department of Corrective Services, Goulburn Correctional Centre (T44). That report was prepared by Ms Naomi Thomas, Mr Mai's probation and parole officer. In compiling her report, Ms Thomas relied on previous probation and parole reports prepared about Mr Mai; two interviews with Mr Mai himself; inquiries made through staff at the Goulburn gaol; and personal home visits to members of Mr Mai's family. In her report Ms Thomas noted that Mr Mai "had not exhibited any problems whilst in custody. He had been quiet, kept mostly to himself and was polite and well behaved" (T44: 139). The report noted that Mr Mai had not undergone any psychological counselling while in prison (T44: 139). With regard to Mr Mai's education, the report made note of the fact that Mr Mai "has participated in education courses undertaking studies in English and appears to be coping well" (T44: 139). The report went on to note that Mr Mai's English "has improved to a satisfactory level; his comprehension appears to be good and he is working on improving his written English" (T44: 139).
Ms Thomas made the following observations about Mr Mai's drug addiction:
The prisoner became involved in the drug subculture when he left home at aged 16 years [sic]. It was at this time that he was introduced to drugs. His use of heroin commenced about four years ago with periods of abstinence during periods of incarceration. Records held by this service indicate that he attended Vietnamese offender Drug and Alcohol groups whilst he was on the methadone program and appeared to be making a concerted effort to overcome his drug addiction and appeared to have made some progress for a while but despite this relapsed frequently. This has been attributed to his lack of strong support networks, loneliness and feeling of rejection by his family during 1996 especially his siblings. It seems that he has gained the support of his uncle aunt and sister and this is going to be important for him as he attempts to overcome these problems and gain a stable lifestyle. During his current term of imprisonment, Mr Mai participated in the first Drug and Alcohol group which was language and culturally specific for Vietnamese prisoners in Goulburn gaol. He fully participated in the program and seems to have achieved a greater insight into his drug addiction and relapse prevention.
(T44: 139)
The report noted that Mr Mai's uncle and aunt would give him both emotional support and provide him with accommodation upon his release from prison (T44: 140). The report also noted that while Mr Mai's father had not offered him any assistance, the remainder of his close family support "is here in Australia", and "it seems he would have no family or other form of support in Vietnam" (T44: 140). Ms Thomas made the following final assessment of Mr Mai's future prospects of rehabilitation:
Mr Mai presents as a courteous cooperative young man, who appears to have experienced some difficulties in early childhood and conflict with his uncle during his in adolescence [sic]. Therefore he was without family support at the age of 16. He subsequently depended on his own resources and was vulnerable to the influence of an undesirable peer group involved in the drug subculture.
The prisoners father had encouraged him to apply for Australian Citizenship in September 1996, however, at that time he was still subject to a 2 year recognizance. Then he was convicted of the offences for which he is currently serving a prison sentence and he was unable to follow that through at the time.
He has attempted drug counselling in the past but without any sustainable results. However he completed a relapse prevention group run specially for Vietnamese men and appears to have gained more insight into his drug use and related criminal activities.
Whilst under supervision of this Service Mr Mai had been cooperative and had appeared to make good progress. Unfortunately following suspension of the supervision component of his recognizance his drug use appears to have increased and led to his offending behaviour
The prisoner now appears to have the support of his family and more insight into his past behaviour.
It is considered by this Service that he may require ongoing counselling once he is released from custody before any confidence can be placed in his ability to survive without returning to drug use.
(T44: 140)

In addition to Ms Thomas' report, which related to Mr Mai's most recent deportable offence, the Tribunal had before it information relating to Mr Mai's performance in prison while serving his sentence for his first deportable offence. In an officer assessment prepared for the Programme Review Committee, it was noted that during his time in custody Mr Mai had enrolled in a "Literacy, Numeracy and Computers course, Woodmachining and Aerobics and seems keen to learn" (T9). Mr Mai had also "won a position at Timber Products as assistant cabinet maker" (T9), and completed a "Young Offenders Pathways Programme" at the Oberon Young Offenders Correctional Centre (T10).
In 1993, Mr Mai sent a letter to the Department in support of his request to stay in Australia. In that letter, Mr Mai stated:
When I get release I am will go back to my uncle house a no: 6 pylara plce busby and ask him to staying there with my brother and my sister until my father come in back to Australia, because my sister send me a letter in prison and say that my father will come back to Australia very soon, and then I can get back to my father my brother and my sister and we will live in a happy family.
Employment:
I will be going back to tafe school when I am get release to study full time of computer or fashion design if one of them is available. And I am looking for a part time job in the restaurant or cabinet maker, because I was held my father in the restaurant so I know how to working in the restaurant, and I have some skill to work cabinet maker in prison.
Past criminal offence:
This time I was in prison for 9 month is because I have a problem with heroin, before, because in the last 2 year I had been doing nothing, in that time I was feel sorry for my sefl, because I see alots of my friends they all have family to be together and I had no one to love and to be together, because my mother is dead my father he going back to my country to do business and re-marry again and I only got my brother and my sister over hear and they all live with my uncle and my uncle sometime he don't like me because on that time I am a street kid, and something he been say to me but I don't lister to him that why he don't like me much. And then I have a heroin problem and after that I been arrest, they sentene me 9 months in prison, in hear I am thinking alots about my family my future and I always keep sat to myself why should I do this for, and then I when to see drug and alcohol officer in prison and tell them about my problem with drug and they been held me about that and now I am very happy. When I get release I promise my sefl that I never touch drug again in my life and I will look for the future for my sefl and my family.
I would like to say that I am very happy to staying back in Australia as the minister let me please, and will be get in Australia citizen ship when I get out. Thank you very much.
(T12)

Mr Mai was cross-examined extensively by the Department's representative in regard to this letter. Mr Mai told the Tribunal that on leaving gaol in 1994 he had been unable to live with his father but had gone and lived with his uncle (transcript 5 June 2000: 46). Mr Mai agreed that on his father's return to Australia, his father had not offered him assistance (transcript 5 June 2000: 50). Mr Mai stated that he had not enrolled in a TAFE course on release (transcript 5 June 2000: 47). He remembered participating in the Introduction to Computing course, and the drug and alcohol program, (transcript 5 June 2000: 50) but was unable to recall what he had learned in that program (transcript 5 June 2000: 50).
Drug Addiction: Medical Assessment

As is already apparent from the evidence reviewed so far a central issue in Mr Mai's risk of recidivism, and related prospect of rehabilitation, has been his ongoing involvement with drugs. The Tribunal had before it a report on Mr Mai's drug and related problems prepared by Dr Robert Lewin, an adult general and forensic psychiatrist (S7). Dr Lewin also gave oral testimony to the Tribunal.
Dr Lewin provided the Tribunal with the following psychiatric history for Mr Mai:
Mr Mai was imprisoned in 1997 after his conviction for a heroin supply matter. He has told me that he had repeatedly sold small amounts of heroin in order to provide for his own narcotic addiction.
Mr Mai describes a history of use of heroin since 1991. He first used this drug intravenously at the age of 18. Initially he used heroin on and off. He developed a daily pattern of addictive use of heroin by 1992 or 1993. In 1993 he spent an extended period of time in custody.
Mr Mai described a marked compulsion to use heroin and he has repeatedly experienced typical heroin withdrawal symptoms. He described rapid reinstatement. By this I mean that he was able to abstain for "a little while" after release from prison, but soon returned to the former pattern of daily narcotic use. Generally this period of abstinence lasted a couple of weeks. The longest period was over six months whilst he was on parole supervision during 1998.
During 1996 and 1997 he had a heavy daily intake costing at least $200. He supported his habit by selling heroin in Cabramatta. He said that there was no regular established pattern of stealing or breaking and entering. I noted a series of entries in his record referring to various stealing matters. Mr Mai explained that a number of these charges had been dismissed.
His narcotic addiction had resulted in a fairly typical pattern of behaviour, which was focused upon seeking drugs.
I asked him about treatment. He noted that he had been on methadone maintenance program over two short periods about five years ago. He was on methadone for three months in 1995. He commenced the use of this drug outside prison, but ceased sometime after he was imprisoned. He told me that he took methadone "On and off" but did not feel that it benefited him at all. He first took methadone in 1995.
He attended the Cabramatta Community Health Centre and saw a Drug and Alcohol Counsellor in the period of his recent parole supervision. He told me that he saw the Drug and Alcohol Counsellor quite frequently whilst under parole, but much less often after parole supervision had ceased. This was perhaps once every two or three months.
He has had no other treatment.
(S: 83)

Dr Lewin also noted that Mr Mai was a daily cigarette smoker; had used marijuana some ten years ago; and had experimented with certain stimulant drugs but no established pattern of stimulant drug use emerged (S: 84). According to Dr Lewin's report, Mr Mai had not used sedatives nor did he have any history of alcohol abuse (S: 84).

During the course of the hearing, Dr Lewin was questioned by the respondent about Mr Mai's participation in drug and alcohol counselling, and methadone maintenance programs. When asked by the respondent whether the brief periods on methadone maintenance programs had been "successful for the applicant" (transcript 6 June 2000: 4), Dr Lewin responded:
In general terms, no. I was given the information that he had continued to use narcotics subsequently and indeed, that he had relapsed fairly rapidly once the fairly structured controls were removed.
(transcript 6 June 2000: 4)

Dr Lewis was also asked whether Mr Mai had benefited from drug and alcohol counselling. Dr Lewin responded:

The history that I was given indicated that he resumed narcotic use soon after leaving prison. The pattern of behaviour was one which is described technically as rapid reinstatement. That once addicted, this particular man rapidly resumed regular narcotic use when this was available to him.

The following dialogue then took place:

Now, Dr. Lewin, you give a prognosis in regards to the risk of recidivism and you indicate that the risk of a recurrence of narcotic addiction and of renewed criminal behaviour against this background is relatively high. Is that correct?---Yes, but there are a number of qualifications.
Those qualifications are?---Well I noted that it's common for narcotic addiction to remit spontaneously, in other words for people to grow out of it, after a period of roughly 10 years. There is clearly no hard and fast rule here, but one common clinical pattern that we often see is that people grow out of their narcotic addiction, often fairly gradually over a number of years and that the 10 year period is a very rough estimate of how – at what stage that often occurs. Now these are not hard and fast rules.
No and have you seen any signs of Mr Mai growing out of his narcotic addiction?—I found no particular indication that he had reached that stage. But I note that he did begin use on a regular basis in an addicted pattern at around the age of 19 or 20.
(transcript 6 June 2000: 5)

Dr Lewin also noted that there would be a number of rehabilitation programs "that would be reasonably accessible to" Mr Mai (transcript 6 June 2000: 6). When questioned as to whether Mr Mai had exhibited a willingness to attend such programs, Dr Lewin stated that such a question "sounds simple but it isn't" (transcript 6 June 2000: 6). Dr Lewin acknowledged that it was in fact an issue which he had not explored in great detail with Mr Mai but that on a review of Mr Mai's history, Dr Lewin "found no indicators that he was heading in that direction…" (transcript 6 June 2000: 7). Dr Lewin also said that Mr Mai would be capable of forming a therapeutic relationship with a counsellor or a psychiatrist "once he's ready to do that" (transcript 6 June 2000: 9).

The question of Mr Mai's recidivist potential was put directly to Dr Lewin in cross-examination. The following exchange occurred:
Now, if you have regard to that bundle of evidence what are the probabilities having regard to his personality of him being able to withstand obviously the temptations which will face him, which will face him when he's released back into the community, and particularly the community to which he'll go back to, that's probably young street kids and as you realise from interviewing him?---Yes, well that's clearly an important part of the assessment….I think it's a tough call. The overall prognosis of untreated narcotic addiction is woeful. There are some positives and many negatives in the clinical information that I've got available. The positives are personality issue that I've highlighted, the threat of a consequence he does not want to see [deportation]. The negatives are also some of the issues that you've laid out before us here. The lack of social supports, the fact that this fellow is very isolated, that he appears to be alienated from close relatives. The important people in his life have been his mother, his father, the grandparents now deceased as I understand it.
….And an aunt and uncle that he spoke to me with considerable fondness about.
(transcript 6 June 2000: 11)

When asked by the applicant's representative about the effect of the deportation order on Mr Mai's behaviour, Dr Lewin provided the following response:

At the time I saw him, it appeared to be having a salutary effect. I think it was probably one of the strong motivating factors in keeping him clean in the gaol and it is important to recognise that he had spent a long period in prison and we didn't fully explore that issue that you put to me.
…
I think it might be of some importance. I wouldn't regard it as a guarantee by any means but it may---
…
It may well be of some influence, yes.
(transcript 6 June 2000: 11-12)

Dr Lewin also told the Tribunal that it was not possible to "extrapolate from abstinence [from the use of heroin] in prison to a likelihood of abstinence on the outside" (transcript 6 June 2000: 11). He said that such an extrapolation could not be borne out either by his own clinical experience nor the research that had been undertaken with regard to that particular issue, although there might be a "small degree of linkage" between abstinence in prison and abstinence on the outside (transcript 6 June 2000: 11).

Dr Lewin said that Mr Mai's medical history indicated that he had not been previously assessed by a psychiatrist. In his written report he observed:
There was no relevant history. He has never been seen for treatment purposes by a Psychiatrist. I carefully reviewed his history of treatment in prison. He told me that he saw a Psychologist regarding family problems…in 1993. He attended a few times, but there was no ongoing treatment. He had not seen a Psychologist or a Psychiatrist in the prison for any other reason, not was there any history of professional consultation.
Mr Mai is not clinically depressed. I asked him a range of questions about typical depressive symptoms. The history was essentially negative. However I note that he is concerned and worried about the matters relating to his deportation.
(S: 84)

Dr Lewin was asked by the Tribunal what conclusions he would be likely to draw from the isolation that Mr Mai had described in his evidence. Dr Lewin stated:

I think the understanding of the question is in an examination of the long term history. The history particularly of his late childhood teenage years. This is a fellow who grew up in Vietnam in the immediate years following a terrible conflict. His parents were separated. His mother was morbidly ill for a long time before she died. There's no doubt this young man experienced a great deal of adversity long before he came here and he describes a very difficult transition into Australian society because he didn't settle into the new family in this country either. I think you have all that history but I think that the most likely explanation of the events that unfolded from the age of 14 onwards. The observations about the lack of antisocial disposition, the lack of conduct disturbance in his teenage years, the fact that he says he first attended his first year of schooling in this country in the English class regularly and didn't abscond and didn't wag, these are important observations about the possibilities for improvement in the future in this case. This is clearly a young man who has been damaged emotionally in his childhood and who was damaged further when he came here but there are evident strengths that are important and should be considered as well. In person, he's a person that you can form a relationship with. I commented particularly that I found him to be courteous and I observed that he gave me the information that I requested quite willingly. He wasn't at all deceptive and I have some experience in assessing that sort of thing. There are strengths there in his character I think.
(transcript 6 June 2000: 13-14)

Dr Lewin said that it was his impression that Mr Mai's "criminal behaviour arose as a consequence of the narcotic addiction rather than the other way round" (transcript 6 June 2000: 14). Dr Lewin also said that "My assessment of Mr Mai is that if he were able to bring his narcotic addiction at least largely under control that his criminal behaviour would in all probability be significantly reduced or cease altogether" (transcript 6 June 2000: 16). Dr Lewin commented further to the Tribunal that in his clinical experience it was not unusual for "narcotic addicts … to have relapses from time to time but that are not necessarily an immediate and direct re-introduction into the … criminal behaviour" (transcript 6 June 2000: 16).

Dr Lewin's report also referred to Mr Mai's broader medical history:
Mr Mai is a hepatitis C carrier. He reports that HIV testing was said to be in the negative. There is no history of intravenous drug use or needle sharing in prison.
He is not currently receiving medical treatment for any condition.
Mr Mai has been involved in two serious motor vehicle accidents.
In 1998 he was travelling in a motor vehicle owned and driven by one of his friends. This man was killed in the accident. Mr Mai had some injuries, which appear to have been soft tissue injuries. He stayed only a short time in hospital and did not have any ongoing treatment. The history I recorded was not terribly specific but he appears to have experienced a period of loss of consciousness lasting a few hours.
There was a further motor vehicle accident in 1991 where he lost consciousness for a period of two days. He was treated in the St Vincent's Hospital on that occasion. Mr Mai appears to have suffered a number of fractures including rib fractures and a pneumothorax. He awoke in the hospital and left after staying only one or two days. It appears that he discharged himself against medical advice and that he was given some warning about possible brain damage. Mr Mai did not seek any further treatment following this incident, nor did he make a third party claim.
He recorded that he began to use heroin a few months after this incident. There was no history of Post Traumatic Anxiety symptoms. If Mr Mai was unconscious, one would not expect him to have developed a Post Traumatic Stress Disorder following that incident.
Comment: It may be useful to obtain copies of the clinical record from St Vincent's Hospital, regarding the accident in 1991.
(S: 85)

During the course of the hearing the Tribunal questioned Dr Lewin further with regard to the issue of the two car accidents in which Mr Mai had been involved (transcript 6 June 2000: 12). The following exchange took place:

THE D.PRESIDENT: In your report you mention that Mr Mai appears to have had two car accidents of a quite serious nature and that you, if I understand it, suggest that it would have been of some value or importance perhaps to have had some assessment whether there was any lasting injury, physical injury or injury to the brain that might have occurred from those - - -?---Yes, yes.
Would you like to say more about that?---The general principle is that in psychiatry you must exclude the organic before you lead to the conclusion that problems are of an emotional nature. Anxiety symptoms can occur in a case of thyroid illness, for example. Brain injury has a range, a…..range of presentations. I just wanted to cautiously put that to one side…I concluded that this case was a primary narcotic addiction and by inference that that arose out of psycho social circumstances broadly speaking. A child who was on the streets functioning poorly, who was not integrated with the community in the sense of education, family and social networks and who was struggling to survive. A narcotic addiction poly substance abuse is a most common finding in those circumstances. I wondered, you know, whether this could be related as an alternative hypothesis to an injury and if so, what the moral implications of that were in terms of how my country should be behaving. You know, a kid that has lived in this country since the age of 12 and who becomes unwell because of a physical injury sustained in this country and then develops a serious life threatening long term problem. It's a different implication to a young criminal as one could also read this case to be and that's why I was being cautious in advancing, considering the alternate hypothesis.
So you wouldn't entirely dismiss it even now?---Well, I don't have any more information so it remains as I've stated it, it would be useful to test that hypothesis, I feel.
(transcript 6 June 2000: 12-13)

Deterrence

A third factor referred to in the Policy Direction relevant to an assessment of the level of risk to the community is the possibility that the deportation of a person like Mr Mai will act as a deterrent to others (Policy Direction: paragraph 14). The Tribunal did not receive any specific evidence regarding this factor but the issue will be discussed further below.
Hardship
Policy Direction
Paragraph 21 of the Policy Direction observes that:
It is the Government's view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include:
the degree of hardship which may be suffered by the potential deportee; and
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).
(Policy Direction: paragraph 21)
In assessing the degree of hardship, which may be suffered by Mr Mai, paragraph 22 of the Policy Direction provides a list of a range of factors, which are likely to be considered by decision-makers. This list includes:
whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported;
the degree and extent of the potential deportee's ties with the likely country of return;
the strength of other family, social or business ties in Australia;
social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.
(Policy Direction: paragraph 22)
It was not contended on behalf of Mr Mai that he now had any ongoing marital or defacto relationship with an Australian citizen or resident (paragraph 22(a)). It was contended, however, that Mr Mai had spent the greater proportion of his formative years in this country, that he now had almost no ties with Vietnam, and that his only family and related affiliations were with Australia (paragraph 22(b), (c) and (d).
Family and Associated Ties
The Tribunal had before it testimony with regard to the hardship that Mr Mai's family would suffer, should he be deported to Vietnam. Mr Mai's aunt, Truynh Huynh, said that she had been involved with Mr Mai and his brother and sister since their arrival in Australia, a period of "about 15 years" (transcript 6 June 2000: 30). The three children lived with Ms Huynh and her husband (Mr Mai's paternal uncle, Tung Mai) on arrival (transcript 6 June 2000: 30) and until Ms Huynh and her husband had their own children (transcript 6 June 2000: 33). Ms Huynh stated Mr Mai's family were all Australian citizens (transcript 6 June 2000: 34). When asked by the Tribunal how she would feel if Mr Mai were deported back to Vietnam, Ms Huynh stated:
I don't know what to say, but my family and all the members in the family will be very sad because he has been here for almost 15 years already, but if he is going to be deported it is very sad.
(transcript 6 June 2000: 35)
Ms Huynh also told the Tribunal that Mr Mai had a brother and a sister living in Australia (transcript 6 June 2000: 32). Ms Huynh said that "because of the family crisis, they are living separately" (transcript 6 June 2000: 32). The background history provided for Mr Mai by Dr Lewin indicated that Mr Mai and his brother and sister "looked after each other during that three-year period" following the death of their mother and prior to their arrival in Australia (T: 86). In an interview with the Department in 1993, Mr Mai stated that of all his family members he felt closest to his brother and his sister (T: 44). In submissions made by Mr Mai's solicitor at Fairfield Local Court, in 1993, it was contended that Mr Mai and his brother and sister spent two years together in a refugee camp on their way to Australia (T: 16). In those submissions, which were later quoted in the Departmental report prepared in relation to Mr Mai's first deportable offence, it was noted that:
…at the refugee camp my client, who was aged from 10 till 12 basically became the father to his brother and sister and had to look after his brother and sister. He had to find food for them and look after their needs. They weren't able to because they were too young. He didn't really go to school very much at the refugee camp because he was too busy organising food. From what I understand of the refugee camp conditions it's rather a dog eat dog world and everybody has to look after themselves. He has a very close attachment to his brother and sister who he has been residing with. Due to this experience that they've been through, probably a closer bond than most siblings have.
(T: 21; T: 64)
Neither Mr Mai's brother nor sister gave evidence before the Tribunal. Mr Mai stated that he had lost contact with his brother on entering remand in 1999 (transcript 5 June 2000: 14). Mr Mai knew that his brother lived in Cabramatta (transcript 5 June 2000: 15) and thought he was employed as a cabinet-maker (transcript 5 June 2000: 14). Mr Mai's uncle told the Tribunal that he had procured work for Mr Mai's brother as a cabinet-maker at the factory where he himself was employed but he had since found work in another factory (transcript 6 June 2000: 25). Mr Mai stated that his present relationship with his sister was "all right" (transcript 5 June 2000: 15). Mr Mai believed that she also lived in Cabramatta (transcript 5 June 2000: 15).
Mr Mai stated that none of the children retained a good relationship with their father (transcript 5 June 2000: 15). For his own part, Mr Mai said that he had not got on with has father for the past ten years (transcript 5 June 2000: 9) and that he had not had contact with his father for the last three years (transcript 5 June 2000: 10). Mr Mai's father did not give testimony before the Tribunal.
According to Dr Lewin, Mr Mai "retains contact with his aunt and uncle" and rings them "about once every month or so" (T: 87) but in general Mr Mai "does not describe close relationships with any relatives in this country" (T: 89). In their separate testimony, both Mr Mai's uncle and Mr Mai's aunt stated that it would be
difficult for Mr Mai to live with them and their children. Ms Huynh stated:
THE INTERPRETER: About accommodation, I feel is – it is difficulties as we are living in the Department of Housing and the property – the premises is just a small one, a three bedroom one so it enough for our family and as we already apply for rehousing but we were told are so many applicant at the moment so is not easy to do that. Moreover, I have three girls and every room has been occupied. About my nephew, Cuong, if he is released and stay here, we are ready to support him emotionally and it is better for him to stay here then we can still support him. But if he is going to be deported to Vietnam, I think he will be very lonely there because no-one and no relative can support him there. Moreover, Cuong, and his brother and sister are very – in a very compassionate situation as their mother died when they were very young and father remarried and didn't set the family and they didn't have a family relation and they got to move from one place to another and their life was no settled, that is why they are like today.
(transcript 6 June 2000: 31)

Both Mr Mai's aunt and uncle told the Tribunal that they would be prepared to give Mr Mai assistance in finding alternative accommodation (transcript 6 June 2000: 20 and 31). Mr Mai's aunt told the Tribunal that they were available to give Mr Mai "emotional support" (transcript 6 June 2000: 31). Mr Mai's uncle gave a similar undertaking (transcript 6 June 2000: 20). With regard to the support he was prepared to give, Mr Mai's uncle made the following statement:

…I had heard that he [Mr Mai] had addicted, and the relation between their father and themselves was broken down since then. But to me, I had always encouraged them, but they listened to me or doesn't go right. I can't twist them. But as I know my brother, since he got his – he got another wife and he didn't look after his children properly, so that one of his mistake. We couldn't blame the children…
(transcript 6 June 2000: 25)

Mr Mai's uncle also told the Tribunal that he would assist Mr Mai in finding employment. He said that he had been successful in such an endeavour undertaken on behalf of Mr Mai's younger brother (transcript 6 June 2000: 25), and had already made inquiries about Mr Mai working in the factory at which Mr Mai's uncle was a cabinet-maker (transcript 6 June 2000: 25). He said that his potential employer was aware of Mr Mai's criminal history and heroin addiction (transcript 6 June 2000: 25).

Both Mr Mai's uncle and aunt told the Tribunal that Mr Mai would not receive any assistance should he be deported back to Vietnam (transcript 6 June 2000: 25). Mr Mai's uncle feared that Mr Mai "would die in prison" should he be forced to return (transcript 6 June 2000: 25) and stated further that "…the family there has no abilities to assist him and no one can assist him" (transcript 6 June 2000: 25). When questioned as to what family remained in Vietnam, Mr Mai's uncle stated that he had a younger sister there, Mr Mai's aunt. Mr Mai's uncle said that this aunt would not be able to offer assistance to Mr Mai as she was looking after Mr Mai's grandmother who was "in a very critical condition" (transcript 6 June 2000: 26). Mr Mai's uncle said that:
I don't think anyone would like to assist him especially in Vietnam if relative is good and in a societies and then like to welcome, but for the naughty people then they don't want to have any relation to that person. In my case because I am his close uncle so I got to put up with his situation and look after him.
(transcript 6 June 2000: 26)

In her separate testimony, Mr Mai's aunt told the Tribunal that "besides his father's sister [Mr Mai] doesn't have any more relatives [in Vietnam]" (transcript 6 June 2000: 32). She added that:

…moreover, his aunty, it means his father sister has to look after his grand mum and she is very old now, so she can't do anything more than look after the mother. So if he is going to be deported, another worry for us is, no-one can assist him there.
(transcript 6 June 2000: 32)

Conditions in Vietnam

The policy Direction (paragraph 22(f)) includes among the list of factors which should be considered by decision makers when assessing the degree of hardship which may be suffered through deportation, " the situation in the country of proposed return, including the overall environment, job opportunities, and the possibility of additional criminal sanctions". There was a paucity of evidence before the Tribunal in relation to this particular consideration.
The respondent provided the Tribunal with a report on Vietnam extracted from the US Department of State: 1999 Country Reports on Human Rights Practices (S3). That report stated in part that: [t]he Socialist Republic of Vietnam is a one-party state rules and controlled by the Vietnamese Communist Party (VCP)". The Party set the broad parameters of all national policy, and the judiciary remained subservient to the VCP. The report also stated that Vietnam was a poor country with an estimated annual gross domestic product (GDP) per capita of$US330.00. According to the report, Vietnam was also a country undergoing significant economic transition and this had led to a "popular expectation that "continued social, legal, educational, and physical improvements" would take place. The report noted that Vietnam was a country with a poor human rights record "although there were some measurable human rights improvement in a few areas, the situation worsened in others, and serious problems remain".
The respondent also provided the Tribunal with an Australian Department of Foreign Affairs and Trade, Country Information Report dated 24 August 1999 (T: 62-76). With regard to the treatment of people who left Vietnam as refugees the report noted the following:

The improvement of relations with Vietnamese who were accepted for resettlement overseas is a priority for the government of Vietnam. a "committee for overseas Vietnamese" has been established. The government has also put in place policies specifically aimed at encouraging these former refugees to return to Vietnam, for the purposes of visiting family, tourism and/or business. In January 1999, for example, the government announced a series of measures which included financial incentives (exemption from application of Vietnam's dual pricing system and the granting of preferential air freight charges) and simplification of visa entry requirements. These privileges have not been granted to other overseas visitors. close to 200,000 former refugees visited Vietnam in 1997, and 214,000 in 1998.

Tens of thousands of Vietnamese settlers in Australia, many of whom were refugees, have returned to Vietnam as visitors without suffering any known harassment. Some 3,000-4,000 Australians of Vietnamese origin now reside in Vietnam.

Overseas Vietnamese are not always trusted, however, and some have been detained on arrival at Vietnamese airports and checked carefully for documents or other material they might be bringing into the country.
(S:72)

The Tribunal also had before it an affidavit of Ms Amanda Paxton, an officer with the Department responsible for reporting on immigration matters from Vietnam. Ms Paxton's affidavit stated that:
It is the assessment of DFAT officers in Hanoi that a Vietnamese national deported to Vietnam for criminal offences would not face additional sanctions or punishment of any kind upon return. Information sought by the Vietnamese authorities in processing these cases relates only to the person's identity, place of origin and family links to Vietnam and does not relate to the crime they may have committed in Australia.
It is widely agreed amongst professional observers of the Vietnamese scene that the Vietnamese Government is not interested in any crimes that a person may have committed whilst living overseas.
(T: 79-80)
The Tribunal also asked Dr Lewin whether he was in a position to tell the Tribunal what treatment opportunities were available to Mr Mai in Vietnam. Dr Lewin gave the following response:
I've not visited Vietnam. I'm speaking for the gentleman who asked me this question and I compared myself to the man on the Clapham omnibus if you understand the analogy that I'm using. I've spoken to colleagues who have been to Vietnam and I've read stuff in the medical literature about the issue in general of medical services in Vietnam. I'm aware of the different approaches the regime took to narcotic addicts in the immediate aftermath of the fall of the South Vietnamese regime. They had a major problem with narcotic addiction on the hands in the aftermath of 1975 and they dealt with it administratively rather than medically…I have no knowledge about the availability or otherwise of treatment for chronic liver disease. My understanding is that the psychiatric services available overall in Vietnam are not lavish and more sophisticated treatments such as methadone and some of the newer drug based pharmacological treatments for narcotic addiction are in my understanding not at all available…They're not universally available here either but there are centres which are currently using those new pharmacological approaches…Methadone is another question. I think that is a reliable and safe, relatively safe treatment alternative that's widely available in this community. It is my understanding that that is not available in Vietnam, that they adopt a much more Confucian moralistic approach to these things. Their approach is based upon social confinement, upon abstinence and upon careful social control. More detail than that I can't give you about what's available in Vietnam.
(transcript 6 June 2000: 16)

CONSIDERATION
Policy, Submissions and Case Law

The primary consideration to which the Tribunal must have regard in deciding whether or not Mr Mai should be deported is the expectation of the Australian community that it will be protected and not put at risk (Policy Direction: paragraph 8 (a) and (b)). The evidence, which was presented to the Tribunal concerning the three factors relevant to the assessment of the level of risk to the community and the need for its protection, has been set out above in substantial detail. Paragraph 11(a) of the Policy Direction also has the following to say about examples of offences which are considered by the Government to be very serious:
11.(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.

Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.
The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.

The Tribunal also has regard to Paragraph 15 of the Policy Direction, which states the following:

Community expectation that non-citizen perpetrators of crimes abhorrent to the Australian community should not be allowed to remain in the community
15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. Decision makers should have due regard to the Government's view in this respect.

In his submissions made on behalf of the applicant, Mr Van Aalst acknowledged that Mr Mai fell within the framework of paragraph 11 of the Policy Direction as a result of his drug related convictions. Mr Van Aalst stated that the wider Australian community would, however, not be affected by Mr Mai's drug dealing. The nature of that dealing, while serious, was in fact comparatively minor "if one looks at the spectrum of criminality and if one looks at criminality in respect of the supply of heroin" (transcript 6 June 2000: 44). The dealing was designed primarily to maintain Mr Mai's own drug habit. Mr Van Aalst further submitted that Mr Mai, "if he remains in Australia at its worst he is going to harm himself" (transcript 6 June 2000: 45).
On behalf of the respondent, Mr Ambikapathy submitted that it was not possible to draw a distinction between different types of drug dealing and that having regard to the wording of paragraph 11(a) the Tribunal should view Mr Mai's offences as very serious. Mr Ambikapathy also contended that although the concept of protecting the Australian community might be a "nebulous" one, the community from which Mr Mai came, the Vietnamese community in Cabramatta, was an Australian community that required protection. Mr Mai, contended Mr Ambikapathy, had no regard for the effect of his actions on that community.
The Tribunal has given careful attention to these submissions made on behalf of both parties as to the way in which it would seek to give appropriate attention to the dictates of the Policy Direction in the circumstances of this case. A rigid interpretation of paragraph 11(a) would seem to require that any potential deportee involved in any form of heroin related supply of drugs could not avoid expulsion from this country. As noted, however, in the judgment given by Madgwick J in the matter of Hong v Minister for Immigration and Multicultural Affairs (1999) FCA 1567, such a rigid view of the Policy Direction is not ultimately sustainable. As Madgwick J said in Hong:
20 On one reading of the direction (or the previous policy), a person convicted of drug trafficking would stand no chance of resisting deportation. It is implicit in the approach of Whitlam and Gyles JJ and also (indeed, more obviously so) of Katz J, that such a reading cannot be supported. The direction is to be read so as to ensure that it is not ultra vires: Pearce and Geddes 'Statutory Interpretation in Australia' 4th edn, p 43. Section 499(2) provides that subs(1) 'does not empower the Minister to give directions that would be inconsistent with this Act'. The expression 'this Act' must mean 'this Act other than subs(1) itself'. Section 200 gives the Minister a discretion to require, in effect, the banishment from Australia of an individual. Section 499(1) does not empower the giving of directions that would turn a discretion, touching 'human fate' (to adopt a phrase used by Toohey J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407) into [sic] no discretion at all. It follows that there must be a genuine weighing of factors tending to opposite conclusions and no artificial limitation of such factors. It is clear that those factors include all matters relevant to hardship for the potential deportee and his immediate family.
(paragraph 20)
Paragraph 12 of the Policy Direction further supports the view that a genuine weighing of factors associated with the primary consideration under review, namely the expectation of the Australian community, needs to be undertaken by the Tribunal. Under the general head "the seriousness and nature of the offence" it is stated in the Policy Direction that:
It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision makers should have due regard to the Government's view in this respect.
(paragraph 12)
Having due regard to the sentence imposed for the deportable offences that have brought Mr Mai before the Tribunal, it is clear that it fell at the lower end of a gravity scale which extends to a maximum of 15 years imprisonment under the provisions of the New South Wales Drug Misuse and Trafficking Act 1985. The combined sentence, in 1997, of 15 months imprisonment imposed upon Mr Mai at Fairfield Local Court in Cabramatta remains the most severe sentence he has received in the course of his criminal career. In 1993, Mr Mai sustained a maximum sentence of 12 months imprisonment and his drug related offending has resulted in other periods of relatively short term incarceration. Mr Mai has also spent a significant time in immigration detention.
In the terms established by this Tribunal in the matter of Hong v Minister for Immigration and Multicultural Affairs [2000] AATA 634, Mr Mai must also be seen "as a self-confessed heroin addict who was introduced to the drug while living the aimless life of a street kid in Cabramatta" and "one of the countless numbers of offenders swept up as low level participants in the pernicious trade in narcotics" (paragraph 80). The actions of the unscrupulous and vicious traffickers in this illicit business who recruit young men like Mr Mai into their business might, in the Tribunal's view, properly be described as engaging in abhorrent behaviour of the type envisaged in paragraph 15 of the Policy Direction. However, in the Tribunal's view Mr Mai's behaviour, while very serious within the terms of the Policy Direction, does not identify him as a "perpetrator of crimes abhorrent to the community".
Having reached this conclusion about the nature and seriousness of Mr Mai's offending the question which must be addressed next is what level of risk does he present to the Australian community. As noted earlier Mr Mai was given a warning prior to the issue of the deportation order presently under review. Mr Mai ignored this warning. In his submissions on behalf of Mr Mai, Mr Van Aalst said that Mr Mai was not in a position to understand or deal with the implications of the warning at the time it was given. Mr Ambikapathy, on behalf of the respondent, stated that the fact that the warning issued by the Department in 1993 was not heeded by Mr Mai was a clear indication that Mr Mai's recidivist potential was high.
The Tribunal also heard expert evidence from Dr Lewin concerning the risk of Mr Mai re-offending, and his associated prospects of rehabilitation. Dr Lewin told the Tribunal that a possible caveat existed to his diagnosis: Mr Mai potentially suffered from a brain injury which remained undiagnosed and untreated and which were it to be diagnosed might impact on Dr Lewin's findings. More will be said about this later. Proceeding on the basis that there was in Dr Lewin's words no "organic" basis for Mr Mai's heroin addiction, the Tribunal heard that, as with most narcotic addicts, there would be significant difficulties in Mr Mai achieving a successful rehabilitation. Dr Lewin told the Tribunal that methadone programs in which Mr Mai had participated had generally not been successful and Mr Mai remained very isolated. Further, Dr Lewin stated that Mr Mai's only periods of abstinence from heroin had been during periods of incarceration and this had only a small amount of bearing on Mr Mai's potential to abstain from heroin once he was outside a prison environment. In fact Mr Mai's past behaviour indicates that Mr Mai has relapsed into heroin usage on release from prison.
It was also contended by Dr Lewin that there were a number of qualifications to the general pattern whereby narcotic addiction recurs on release from gaol and criminal behaviour is renewed in order to sustain that addiction. Dr Lewin said that it was common for narcotic addiction to remit spontaneously within a period of about ten years. Dr Lewin also told the Tribunal that Mr Mai was a person with whom a therapeutic relationship could be developed. In a report provided by Ms Naomi Thomas it was also pointed out that Mr Mai had been a cooperative prisoner who was "polite" and "well-behaved" and who had undergone psychological counselling, education programs and a participant in drug counselling although without sustainable results.
In his submissions Mr Van Aalst asked the Tribunal to consider that the threat of deportation was a force capable of motivating Mr Mai to stop taking heroin. Dr Lewin had already indicated that the threat was at present having a "salutary" effect. The respondent contended, however, that such a threat had been made in the past and that Mr Mai had continued to re-offend. Although the expert testimony was not entirely pessimistic about Mr Mai achieving a lifestyle free of drugs in the foreseeable future, the Tribunal must still assess the overall risk of Mr Mai continuing his pattern of drug related offending to be quite high. The Tribunal also accepts on the basis of the expert testimony that Mr Mai's criminal activity is driven almost entirely by his heroin addiction. The Tribunal is of the view that in this context, Mr Mai's deportation will have little effect in deterring others pursuing a similar path.
Other Relevant Factors
The Tribunal now turns to the evidence, submissions and case law with relating to a number of other matters relevant to the issue of deportation, including the degree of hardship which might be suffered by Mr Mai and his immediate family should he be returned to Vietnam. Mr Van Aalst contended that it was incumbent upon the respondent to persuade the Tribunal that Mr Mai would not suffer hardship upon his return. The respondent rejected this contention as does the Tribunal. The Tribunal does, however, take note of the observations made by Sackville J in Danionel Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713:
39 Mr Johnson submitted that, properly construed, the Direction is not intended to preclude the AAT from considering the particular circumstances of each case, including the degree of hardship likely to be suffered by the potential deportee or members of his or her family. It is therefore open to the decision-maker to find, depending on the circumstances of the case, that the likely hardship outweighs the 'primary consideration' of the expectations of the Australian community (par 6(a)). And this may be so even if the potential deportee has committed very serious offences.
40 In my opinion, this approach to the construction of the Direction is correct. If the Direction were intended to have the rigid operation attributed to it by Mr Game, there would be little point in the express recognition in par 5 that the decision-maker should adopt a balancing process that takes into account all relevant considerations, not merely the two primary considerations. Similarly, there would be little point in the acknowledgment in par 21 that it is relevant to consider the degree of hardship which may be suffered by the potential deportee or member of his or her family. As par 22(b) implicitly recognises, even potential deportees who have committed serious criminal offences may escape deportation if, for example, they have spent the greater proportion of their formative years in Australia. Moreover, there is a well-established principle that if an instrument can be construed so as to avoid being held ultra vires, that interpretation should be adopted: D Pearce and S Argument, Delegated Legislation in Australia (2nd ed 1999), par 30.4; see also Hong v Minister for Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].
41 It follows that, despite some ambiguity in the language, par 21 at the Direction must be read as preserving the discretion of the decision-maker to take into account all the relevant circumstances of the cases and, if otherwise appropriate, to hold that the hardship likely to be experienced by a potential deportee outweighs even serious criminal conduct. This conclusion does not resolve all questions of construction of the Direction, and perhaps not all questions going to validity, but it is sufficient for the purposes of the present case.
(at paragraph 39-41)

The Tribunal also notes the observations of the Full Federal Court in Rokobatini as to the way in which it should approach the issue of rehabilitation and the risk of recidivism within the framework of the Policy Direction. In this regard, in their joint decision, Whitlam and Gyles JJ said:

The Tribunal was obliged to assess the degree of hardship which may be suffered by the potential deportee and, having done so, put its conclusion on that issue on the scales in the manner provided for by the Direction. The possibility of rehabilitating the appellant from a life affected by drugs, alcohol and gambling, and the almost certain exacerbation of those personal problems by reason of deportation, simply cannot be described as irrelevant to the Direction. To take that view is to misconstrue or simply not follow the Direction.
(paragraph 23)

Mr Van Aalst submitted that Mr Mai's aunt and uncle were in effect the "foundation" of his family and that he would suffer significant hardship were he to be separated from them. Mr Ambikapathy, on behalf of the respondent, submitted that "the applicant does not have family opportunities in Vietnam in the same way that he has here" (transcript 6 June 2000: 58). Despite this, it was the respondent's further submission that Mr Mai has not drawn upon his family in Australia as a resource: he chose to live on the streets; he was estranged from his father; he preferred to be alone and had ignored the advice given to him by his aunt and uncle. The respondent contended that on this basis the Tribunal should conclude that there would be very little difference made to Mr Mai's family situation were he to be deported.
The Tribunal does not accept the respondent's conclusion in this regard. Mr Mai came to Australia as a young man. His immediate family had lived through the war in Vietnam but failed to escape its aftermath. At the time of Mr Mai's arrival in Australia he had been separated from his father for approximately eight years; his mother had already died and Mr Mai and his younger siblings had been living in refugee camps. On arrival in Australia, Mr Mai was thrust into a foreign culture with few supports and at that stage little if any ability in the English language. He was twelve years old. Mr Mai's family life and educational opportunities were severely disrupted. By all accounts his father proved an unwilling aid in easing Mr Mai's transition into this country. Despite the best efforts of his aunt and uncle who, unlike his father, maintain an active interest in Mr Mai's well-being, Mr Mai ended up living on the street with the consequences that thereby ensued. Hardship is, as the respondent contended, a subjective issue. Mr Mai's family and social ties in Australia are, despite the difficult circumstances that have tested them, strong within the terms considered by paragraph 22(d) of the Policy Direction.
The respondent contended that removing Mr Mai to Vietnam would not cause him much greater hardship than that which he now experiences (transcript 6 June 2000: 59). Mr Van Aalst, on behalf of the applicant, submitted that removing Mr Mai to Vietnam would cause significant hardship based on the lack of family support available to him there. The Tribunal concurs with that latter contention. Mr Mai now has virtually no family ties or related connections with Vietnam. According to the testimony of both his aunt and uncle, whom the Tribunal accepts as credible witnesses, Mr Mai still has an aunt in that country. Mr Mai also has an elderly grandmother. There was no evidence before the Tribunal that Mr Mai's aunt or Mr Mai's grandmother were either willing or able to look after Mr Mai. The evidence before the Tribunal was that Mr Mai's grandmother was both sick and elderly and that Mr Mai's aunt was her primary carer. It was also said that she was unable to assume responsibility for Mr Mai. Apart from the two members of his family mentioned above, there is no evidence before the Tribunal of any significant ties between Mr Mai and that country. Within the terms envisaged by paragraph 22(c) of the Policy Direction, Mr Mai has only very weak connections to the country to which he will be returned if deported.
The Tribunal also heard submissions with regard to Mr Mai's prospects for rehabilitation in Vietnam. The respondent submitted that Mr Mai's prospects for rehabilitation were much the same in Vietnam as they were in Australia. In essence the respondent contended that Mr Mai's "life is already essentially ruined" (transcript 6 June 2000: 57). On behalf of Mr Mai, Mr Van Aalst contended that the applicant's prospects were far fewer in Vietnam than in Australia.
There was little evidence before the Tribunal with regard to the treatment prospects available to Mr Mai in Vietnam for his heroin addiction, Hepatitis C or for achieving a proper diagnosis with regard to the brain injury he may or may not be suffering. Dr Lewin stated that he was unable to assist the Tribunal with regard to treatment programs available for patients with Hepatitis C and the liver disease that can result from that infection. Dr Lewin did tell the Tribunal that the psychiatric services available in Vietnam were not "lavish" and that sophisticated drug treatments such as methadone and newer drug based pharmacological treatments were according to his understanding "not at all available" (transcript 6 June 2000: 15).

The Tribunal accepts that Mr Mai would probably not suffer any direct discrimination or disadvantage as a result of his return as a criminal deportee. The Tribunal is of the view, however, relying on both the available country information and Dr Lewin's testimony, that return to Vietnam will almost certainly lessen Mr Mai's already severely circumscribed chances for rehabilitating successfully. It is the Tribunal's view that deportation will exacerbate those personal problems, and particularly those relating to his isolation, which, according to the expert testimony before the Tribunal have led in large part, to Mr Mai's heroin addiction.
On behalf of the applicant it was submitted that both Mr Mai's aunt and uncle would suffer significant hardship if Mr Mai were to return to Vietnam. Mr Van Aalst contended that the evidence showed that Mr Mai's most immediate and concerned family would suffer significant sadness and that his aunt and uncle would also be fearful that Mr Mai would not be able to survive in Vietnam were he to be deported there. The respondent did not make specific submissions in this regard but contended more generally that the applicant's relationship with his aunt and uncle was a difficult one and that the applicant had already been absent their lives for some time.
The Tribunal accepts as credible the evidence provided by both Mr Mai's aunt and uncle that they both felt for the plight that Mr Mai and his siblings were in. Mr Mai's aunt and uncle were giving truthful testimony when they told the Tribunal that they were unable to give Mr Mai accommodation in their housing commission home. The Tribunal accepts, however, that Mr Mai's aunt and uncle would be available to give Mr Mai the emotional support he requires in order to end his addiction to heroin, and his uncle would also be able to provide him with assistance in finding employment and alternative accommodation. The Tribunal is satisfied that these plans represent a genuine desire to assist Mr Mai. Further, the Tribunal finds that to deport Mr Mai would result in significant hardship, as contemplated in paragraph 24(b) of the Policy Direction, for a family that has made the best efforts it could to be of assistance and support to Mr Mai.
CONCLUSION
The deportation power is a power with extreme and fateful consequences for not only the person who is deported but also for their families. It is a power, which should be exercised with great care by the Tribunal. Equally the Tribunal should be mindful that it is also under an obligation to protect the community from the possibility of further criminal behaviour, and to remove from the community persons whose actions are so abhorrent that they should not be allowed to remain within it.
The Australian community offered Mr Mai a safe haven from the harrowing experiences of the war in Vietnam and its aftermath. Mr Mai has been a resident in Australia for the majority of his life, including those critical and formative years between 12 and 18 when he achieved adulthood. As an adult Mr Mai has been convicted of a number of serious drug related offences. Mr Mai and his family have suffered as a result of those offences. The Australian community has also suffered and it has every right to demand that it should not be further exposed to unacceptable risks of re-offending by Mr Mai.
That blanket demand is one which, in accordance with both the Policy Direction and the case law, must still come under careful scrutiny. In this case, and having regard to all the evidence that is before it, the Tribunal is satisfied that despite the level of risk of Mr Mai becoming involved in further drug related offences the very severe hardship that would be inflicted upon him should he be returned to Vietnam is sufficient on this occasion to outweigh the factors favouring his deportation to Vietnam, a country where he has virtually no established ties and very few prospects. As this Tribunal noted in the case of Hong:
The Tribunal believes that the Australian community has sufficient understanding of and compassion for persons who are afflicted by the scourge of heroin addiction. It is a regrettable but widely known fact that many Australian families are touched by this tragic problem, and are required to cope with children who become entrapped in the heroin trade as a result of their craving for the drug.
(paragraph 91)
In reaching this conclusion the Tribunal wishes to stress to Mr Mai that further re-offending by Mr Mai will result in almost certain expulsion from this country. It is now up to Mr Mai to avail himself of the opportunities provided in this country to treat his heroin addiction and avoid re-offending. Thus the decision under review is set aside and the matter is remitted back to the Minister with a direction that Mr Mai not be deported.

APPENDIX 1

APPLICANT'S CRIMINAL RECORD

Place and Date of Conviction     Offences      Sentence
Fairfield Local Court, Fairfield 29/10/91 Robbery in Company (Principal in second degree) Possession of prescribed restricted substance Fixed term 3 months imprisonment   Fixed term 14 days imprisonment
Fairfield Local Court, Cabramatta   5/3/92        Steal from a Person NBC Conviction s.80AA Warrant to issue for penalty.
Fairfield Local Court Sydney District Commander 22/4/92    GIC Stealing (s.80AA Warrant)   Fail to appear (Fairfield 5/3/92) (1st instance warrant)         Fined $400 30 Hours Community Service Order 100 Hours Community Service Order
Fairfield Local Court Bankstown 29/10/92 Breach of Community Service Order (1st instance warrant) (2 counts) On each count, fixed term 3 months imprisonment
Liverpool Local Court, Cabramatta 30/1/93     Supply prohibited drug (Heroin) Possession of drug    6 months imprisonment   Adj Gen (Conviction appealed but appeal dismissed and conviction confirmed on 21/5/93)
Fairfield Local Court Cabramatta 13/4/93        GIC   Supply prohibited drug (Heroin)     Possess prohibited drug     Fixed term 1 months imprisonment Minimum term 9 months imprisonment with additional term of 3 months. (On 21/5/93, Conviction confirmed on appeal) Adj Gen
Fairfield Local Court Cabramatta 12/8/94        Stealing s.496          NBC
Fairfield Local Court Cabramatta 16/3/95        Possession of prohibited drug Steal (FIW)       On each charge, a $1000 self recognisance. On each charge, a 2 year Good Behaviour Bond with supervision from the NSW probation service.
Fairfield Local Court Cabramatta 24/8/95        Supply prohibited drug       Fixed term 3 months imprisonment
Fairfield Local Court Cabramatta 26/3/97        Supply prohibited drug       Minimum term 9 months imprisonment with additional term of 6 months imprisonment (Conviction confirmed on appeal. Sentence varied to 6 months imprisonment with additional term of 9 months imprisonment)
Fairfield Local Court Cabramatta 7/10/98        Enter inclosed land not presc premises w/o lawful excuse          Fine $200
Fairfield Local Court Cabramatta 4/12/98        Enter inclosed land not presc premises w/o law Fine $400
Fairfield Local Court Cabramatta Possess prohibited drug     Fine $800

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  5, 6, 7 June 2000
Date of Decision  7 September 2000
Counsel for the Applicant        Mr Julian Van Aalst
Solicitor for the Respondent    Mr Jennan Ambikapathy