Ngo and Minister for Immigration and Citizenship
[2008] AATA 19
•9 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 19
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5217
GENERAL ADMINISTRATIVE DIVISION ) Re TRONG DUY NGO Applicant
And
MINISTER FOR IMMIGRATION
AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr G. L. McDonald, Deputy President Date9 January 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) G.L. McDonald
Deputy President
MIGRATION – deportation - substantive criminal record - exercise of discretion - applicant father of two children - applicant an only child with a mother approaching old age and ill- health - second armed robbery committed within six or seven months of release from prison for first armed robbery - violence and home invasion - expectations of Australian community not an inflexible concept - on balance decision affirmed.
Migration Act 1958 s 501
REASONS FOR DECISION
9 January 2008 Mr G. L. McDonald, Deputy President THE APPLICATION AND THE HEARING
1. The applicant, Mr Trong Duy Ngo, is applying for the review of a decision of the delegate of the Minister for Immigration and Citizenship dated 17 October 2007 to cancel his transitional (permanent) visa. The reason for the cancellation is that the applicant was found not to have passed the character test set out in s 501(6) of the Migration Act 1958 (the Act), as the result of him having a substantial criminal record. If that decision is affirmed then the applicant will be returned to his country of birth, the Socialist Republic of Vietnam, and effectively will never be permitted to re-enter Australia. The Tribunal has decided that the decision should be affirmed.
2. The Tribunal had before it the material filed for purposes of s 501G(2) of the Act and the exhibits tendered in the course of the hearing. The applicant and his mother, Mrs Hong Thi Ngo, gave evidence at the hearing.
THE APPLICANT’S CRIMINAL RECORD AND NOTIFICATION OF CONCERN ISSUED BY THE RESPONDENT
3. It is conceded that the applicant has a substantial criminal record as defined in s 501(7) of the Act, and that, accordingly, he fails the character test. The applicant’s criminal record and sentences are as follows:
·18 December 1998 - 1 count each of possessing and using heroin and trafficking in heroin: 6 months suspended sentence;
·30 September 1999 - 1 count each of possessing and using heroin, 12 counts of obtaining property by deception, engaging in money laundering, attempted theft of a motor vehicle, 3 counts of theft, intentionally damaging property, theft of a motor vehicle, going equipped to steal/cheat: 4 months imprisonment to be served by an intensive correction order;
·25 September 2000 - 2 counts of theft and breaching the intensive correction order: 127 days imprisonment (the Tribunal did not have any details concerning the sentencing but assumes that the applicant may have served some time in custody pending his sentencing);
·30 October 2000 - 1 count of armed robbery: 5 years imprisonment with a minimum term of 3 years (the first armed robbery); and
·11 February 2005 - 2 counts of false imprisonment and 1 count each of armed robbery and of intentionally causing serious injury (the second armed robbery): 5 years and 9 months with a minimum term of 4 years.
4. The parties had somewhat differing views as to the seriousness of the facts involved in the two armed robbery offences. That being the case it is best that the Tribunal’s findings be stated before setting out its conclusion with respect to the significance of those facts in its determination of this case. The Tribunal’s findings are based on the remarks made by the County Court judges who sentenced the applicant and his co-accused. The Tribunal also accepts the applicant’s evidence that at the time of both offences, he had an addiction to heroin and experienced problems with gambling.
The first armed robbery
5. The applicant and his co-accused were convicted after a trial before a jury. The Judge found that the applicant’s mother was apparently owed a business debt of $2000 by the victim’s family. The debt had been outstanding for two years. The applicant had made several unsuccessful attempts to recover the debt by visiting the debtor. The applicant’s mother agreed to the applicant collecting the debt and to him retaining the money for his own use. The applicant’s mother was unaware that the applicant was desperate to get hold of the money in order to pay a gambling debt and possibly for the purchase of heroin. The applicant recruited five others to accompany him in visiting the victim’s (the debtor) home at night. The applicant advised the others involved to be armed and that they should cut the phone line in the house. The female victim was assaulted by two of those accompanying the applicant and jewellery she was wearing was forcibly removed. The Judge accepted the Crown case that the applicant did not plan the violence, was not one of those who carried the act out and that he did not remove any property from the premises, but that he condoned what occurred. The Judge, however, concluded that the fact a debt was owed to the applicant’s mother in no way mitigated the incident. It was also found that the home invasion was an aggravating factor. The Tribunal accepts the Judge’s finding that it was the intention of the applicant to frighten the victim into paying the amount of the debt owing but that he condoned the events as they transpired.
The second armed robbery
6. The applicant and one of his co-accused (who was involved in the first armed robbery) pleaded guilty to two counts of false imprisonment, one of intentionally causing serious injury and one of armed robbery. Additionally the applicant pleaded guilty to one count of obtaining property by deception. The victim was a known money lender to the Vietnamese community. The judge found that the two accused with a third person, who was not apprehended, followed the victim to her home. The offenders wore balaclavas. To gain entry they smashed a bedroom window. Each of the co-accused was armed, one having a meat cleaver, one a Samurai sword and one a knife. The female victim was forced out of the bedroom into another room where her jewellery was removed. The female victim’s partner struggled with two of the offenders and was injured by a laceration to his lower leg, a puncture wound to his scrotum and suffered bruises and abrasions to his scalp, face and head. The male victim lost consciousness. The telephone was cut from the wall and both victims were tied up before the offenders left the house. Since all three offenders were involved, each was guilty of all of the four major offences. The applicant sold a mobile telephone belonging to the male victim to a third party. The applicant represented that the phone belonged to him and that constituted the further offence. Both the applicant and his co-offender cooperated with the police and pleaded guilty at the earliest opportunity.
7. On 18 March 2002 the respondent notified the applicant that it intended to cancel his visa. That notice contained a defect and a new notice was issued on 28 February 2003. It is accepted that the applicant received the notices. The applicant was interviewed by a departmental officer of the respondent on 21 March 2003 during which it is recorded that he wants one more chance to turn his life around. In answer to the question What is the likelihood that you may repeat the conduct, the following response via the interpreter is recorded: None. At 35 it is time to turn his life around. It is now or never. Statements in which the applicant expressed his determination to overcome his past criminal conduct appear in other parts of the interview. It is also recorded that he wanted to establish contact with his children.
8. Section 501(7) of the Act provides that a person has a substantial criminal record if he/she has been sentenced to a term of imprisonment of 12 months or more. As his criminal record demonstrates, the applicant has been sentenced to imprisonment on two occasions with both sentences exceeding 12 months.
THE DISCRETION AND THE MINISTERIAL DIRECTION
9. Section 501(2) of the Act provides the Tribunal discretion as to whether a visa may be cancelled in circumstances where a person fails the character test. The exercise of that discretion is governed by Ministerial Direction 21 (the Direction), the terms of which are binding on all administrative decision makers. The Direction provides the following three matters are to be of primary concern:
·protection of the Australian community including:
othe seriousness and nature of the applicant’s conduct;
othe likelihood of him repeating that conduct; and
ogeneral deterrence;
·the expectations of the Australian community; and
·the best interests of any child.
The Direction categorises the three primary considerations as important but requires that those matters are to be balanced with other considerations. The Direction relevantly notes as matters requiring other consideration: family disruption; the contact the person has had with the country to which the person may be returned; and, the support which he may look to upon return, the degree of hardship resulting to the immediate family, any evidence of rehabilitation and any recent good conduct, the duration of any stay in Australia and the fact that the non-citizen may have been previously advised about conduct which may lead to his visa cancellation.
THE FACTS
10. The Tribunal is satisfied from the material and the evidence given at the hearing as to the following facts:
·The applicant was born in 1968 in the then South Vietnam. He is an only child. His father and mother separated when the applicant was aged 3 years. In 1975 the applicant and his mother fled Vietnam as refugees. They travelled by boat to Malaysia. After six or seven months in a displaced persons camp they arrived in Australia in 1984. The applicant was then aged 16 years. After undertaking a bridging course in English the applicant resumed his secondary education. He finished school mid year without completing year 11, aged 19 years.
·The applicant had commenced working part time in one of his father’s metal window manufacturing factories in Saigon aged 10 years. While working there, his dominant right hand became caught in machinery and he lost the middle three fingers. Despite his injury the Tribunal notes that he continued to work on weekends in his father’s manufacturing firm in Vietnam, and, that since arriving in Australia he has worked in a number of different manufacturing positions.
·The applicant has never married. He has two children now aged 15 and 16 years. The children live with their mother who has apparently moved interstate. The applicant and the mother separated in 1993. The applicant is experiencing difficulty in maintaining contact with the children because of a claimed lack of co-operation by the mother. The applicant is further constrained from making contact because he is in prison. The applicant claimed that when he last attempted to see the children at their school the mother moved with the children interstate. The applicant last saw his son on two occasions and his daughter on one occasion in 2003/4. He does not now know the location of the children and he has not had any written or oral communication with or concerning them since he last saw them.
·The applicant’s mother, who is an Australian citizen, continues to offer him support. She has regularly visited him while he has been in prison. She would miss him greatly if his visa is cancelled. Given the applicant’s father died in 1998, if the applicant’s visa is cancelled then his mother ,who is now aged 64, would be deprived of her only child’s support as she moves towards old age. In a letter dated 9 November 2007, Dr Dang Pham, the applicant’s mother’s general medical practitioner, states:
Ms Hong Thi Ngo [the applicant’s mother] is currently suffer [sic] from chronic moderate-severe asthma and bronchiectasis. She needs assistance and support. She has only one son (the applicant) in Australia to assist her. She worries that no one can look after her if he is not in Australia. These extra stresses are causing adverse affect on her medical conditions.
The applicant’s mother has some half siblings living in Australia. They in turn have children aged between 15 and 25 years of age. The applicant’s mother said that her siblings and their families had their own lives to lead and had not been able to assist her during the time the applicant had been in prison. This is despite a request from the applicant that they do so. The applicant, in his oral evidence to the Tribunal, stated that his mother was a strongly independent person but acknowledged that she would need support as she aged.
·The applicant’s mother used to maintain a stall at a weekend market and stated that she would take this up again, after the applicant finished his current sentence, so that the applicant may both be kept busy and increase his earnings.
·The applicant maintained that he regarded Australia as home. The applicant has no ties to Vietnam and if returned he would have no family support. His only relations there are an elderly aunt and an uncle who is a Buddhist monk, the whereabouts of the latter is unknown. The applicant claimed that the injury to his hand would make it more difficult than normal for him to obtain employment if he returned to Vietnam. However, the Tribunal notes that he has worked in several manufacturing positions since being in Australia and has been able to physically cope. While he would not experience significant language difficulties the Tribunal accepts that he would not have any contacts that could assist by placing him in employment. There was no evidence as to any rehabilitative services or other assistance which may be offered if he is returned to Vietnam and the Tribunal is satisfied that there would be none offered to the applicant.
·On the other hand, the applicant has the offer of employment in Australia. Upon a vacancy arising, Mr Mao Nguyen, the managing director of a proprietary limited company, has offered a job to the applicant. Mr Nguyen, who is aware of the applicant’s circumstances, including his criminal convictions, is a close friend of the applicant’s mother and his firm has previously employed the applicant.
·During his imprisonment the applicant has successfully completed a number of programs designed to make offenders more aware of and control better the behaviour which has resulted in the offending occurring. The applicant has successfully undertaken a cognitive skills program, a moderate intensity violence intervention program and a substance use and violence module. The latter module examined substance related aggression and violence and a number of related topics.
·It was also the applicant’s evidence that during his current term of imprisonment he has tried to secure support, after obtaining legal aid, to trace his childrens’ whereabouts. The Tribunal accepts that this is difficult to achieve when a person is in prison. However, there is no evidence that the applicant made any substantive effort to secure this when he was released from prison in 2003.
THE ISSUES
11. Each party filed detailed submissions. The Tribunal has read and taken account of their contents. The following paragraphs set out in summary the main issues as the Tribunal sees them. While not every issue raised in the summaries has been canvassed, the Tribunal took them all into account when reaching its decision:
The Respondent’s Submissions
12. The respondent submitted that the applicant’s offending was very serious in the terms of clause 2.6(e) of the Direction, as violence and home invasions had been part of both of the robberies. The respondent further submitted that the second armed robbery was committed approximately six months after the applicant was released from custody on parole for the first armed robbery. And further that, the seriousness of the offending, the applicant’s relapse into taking drugs after expressing a desire not to, and, the applicant’s failure to address the underlying causes of his drug taking and gambling, indicate a high likelihood of recidivism. The respondent submitted that given the serious nature of the offending the community needs to be assured that there is only a small likelihood of there being any re-offending.
13. The respondent contends that general deterrence of others in the applicant’s circumstances committing similar offences is also relevant.
14. The respondent submitted that the Australian community would expect a person to be given a second chance. In this case the applicant had been given a suspended sentence in 1998, a term of imprisonment in 1999 and an additional term of imprisonment for the first armed robbery. The respondent submitted that while it was expected that he would have reassessed his offending behaviour, the applicant did not do so.
15. With respect to the best interests of the children, is the respondent submitted that the cancellation of his visa would have minimal impact since the applicant has had little contact with them since they were very young. The respondent relied upon clause 2.16(b) of the Direction. It states that the hypothetical prospect of a relationship developing in the future is normally to be accorded less weight than if there has been an established ongoing relationship.
16. The respondent accepted that the applicant’s mother would face difficulty if the applicant’s visa is cancelled, but pointed to the existence of siblings and their children as being able to provide support to her.
17. Finally, the respondent submitted that the applicant’s conceded good behaviour and rehabilitation in the controlled environment of a prison should not be taken as being indicative of his likely conduct in the community.
The Applicant’s Submissions
18. The applicant submitted that the facts demonstrate that the applicant played a less serious role than the co-accused in the first armed robbery, and that he was not responsible for assaulting the victim. The applicant has, from a very young age, worked hard and has the capacity to do so again. The applicant’s troubles were claimed to be associated with his involvement with drugs and if that involvement was overcome then he would be unlikely to reoffend. The applicant had successfully undertaken course in prison to assist him in controlling drug related violent behaviour. He had cooperated as far he was able in undertaking the prison programs and in being counselled by the prison treatment manager. He had the emotional and financial support of his mother, the prospect of employment and had enquired as to ongoing counselling from the prison treatment manager - the latter being indicative that he wished to continue his treatment after completing his prison sentence.
19. The applicant submitted that the best interests of the children were met by the applicant being present in Australia, making contact easier than if he was returned to Vietnam. The fact that the applicant had had little contact with the children to date could not be entirely said to be his fault. The mother had actively taken steps to cut him off from contacting the children and it was impossible for him to pursue her whereabouts when he is confined in prison.
20. The applicant also submitted that the applicant’s mother is approaching old age and requires greater support than previously, particularly given her frailty and illness, and that this need would increase over time. His departure from Australia would place undue hardship on her if the applicant’s visa was cancelled. While she had visited Vietnam on two occasions, her health was such that she would be unlikely to be able to do so again in order to see the applicant. Given the applicant is her only child and that her siblings and their children had not been able to offer her support during the period the applicant was in prison, she would suffer undue hardship in the absence of the applicant.
THE TRIBUNAL’S CONSIDERATIONS
21. The Tribunal has set out in some detail the circumstances of in this case. The Tribunal has experienced considerable difficulty in balancing the factors required to be considered. The Tribunal is satisfied that those factors are so evenly balanced that the Tribunal is unable to conclude that there is a preferred decision which should be substituted for the decision reached by the delegate.
22. The Tribunal has considered this case by taking the most favourable view of the applicant’s prospects of overcoming his past criminal conduct as well as his drug and gambling problems. The Tribunal considers that he may have matured sufficiently to give a meaningful undertaking that he would not commit further offences, that he had a genuine desire to find and be in touch with his children, and, that he wanted to care for his aging mother. However, these undertakings, expressed in the course of his oral evidence to the Tribunal, cannot be considered in isolation. He has given similar undertakings on a previous occasion, namely after his release from prison after the first armed robbery. His expressions of intent, while they may be genuinely held, must be examined in the context of his conduct in order to reach the necessary balance of factors to be taken into account.
23. The Tribunal is satisfied that the applicant has done all that he possibly can do to rehabilitate by successfully completing programs while in prison for the second armed robbery. He acknowledges that he needs to secure ongoing professional support after he finishes his current minimum sentence - in approximately six months - if he is to successfully overcome his drug and gambling problems. While he has not made any formal arrangements for counselling, he has enquired whether the prison case manager, who has conducted a number of one-on-one sessions with him, may be available to assist after his discharge. Further, given he may secure parole, there may be conditions requiring him to undergo counselling. The Tribunal also accepts that the applicant’s behaviour, during the period of his current sentence, including his not taking illicit drugs, has been exemplary.
24. The Tribunal is satisfied that while there may be no excuse in law for the applicant’s actions in relation to the first armed robbery, the judge accepted that the purpose and intent of the applicant in going to the premises of the victim were to secure the repayment of a debt owing to his mother. The events which brought the applicant into court were not planned and the crime was not premeditated. There was no such explanation which could be attributed to his actions in relation to the second armed robbery. The robbery was planned in advance between the perpetrators who selected someone known, or at least thought to have money at her house. They attempted to hide their identities by wearing balaclavas and each was armed. The perpetrators forcibly entered the private residence of the female victim and her partner at night and the male victim was seriously injured and left unconscious. Despite this, both victims were restrained to restrict them from raising the alarm. The facts establish the second armed robbery as involving a greater degree of personal culpability of the applicant than was involved in the first armed robbery. His drug taking provides neither an excuse nor an explanation for the deterioration of his conduct.
25. The consistency of the applicant’s offending since the age of 20, his re-offending despite a warning from the Department before his release after the first armed robbery, and the fact that the second armed robbery occurred shortly after his release and while he was on parole for the first armed robbery, do not support the applicant’s case. Despite his stated desire to be in contact with his children he took no steps after his release from prison in 2003, at which time he had contact with the children, to formalise the manner in which this might occur. The applicant engaged in further criminal conduct knowing of the likely consequence of further imprisonment and the likely difficulty that would impose on securing access to his children. He took no steps to address his drug and gambling problems after his release from prison. These factors combine to leave the Tribunal satisfied that little weight can be attributed to his expressed desire to reform. The applicant was a mature man when he was released from prison after the first armed robbery. He has demonstrated that, at 35, he lacked the maturity to appreciate his responsibilities with respect to his children and to his mother. The Tribunal is not satisfied that the applicant will reach a mature appreciation of these responsibilities when aged 40, which will be his age at the time of his earliest release date.
26. Turning to the applicant’s recent good conduct while in prison. This includes the negative random drug tests and successful completion of courses and one on one counselling sessions. The Tribunal distinguishes between the desires he may express and the commitments he may give while in the controlled environment of prison and his actions as demonstrated in his conduct after his release after the first armed robbery. The Tribunal is unable to attribute much weight to his current stated objectives having regard to his lack of fulfillment to similar or the same commitments given shortly after his release from prison in 2003.
27. The Tribunal is satisfied that there is an unsatisfactorily high and real risk to members of the community of the applicant re-offending.
28. While little weight may be attributable to the issue of general deterrence it remains a factor nominated in the Direction for consideration. The Tribunal is satisfied that the applicant is unable to satisfy the primary considerations nominated in the Direction because of the seriousness of the offences, the risk of him further offending and for reasons associated with deterring other non citizens form engaging in similar conduct.
29. It is an expectation of the Australian community that non-citizens comply with the law. However, this should not be regarded as an inflexible expectation. For instance, it would be an unrealistic expectation that all refugees will always comply with the law just as it is an unrealistic expectation that all citizens will always comply with the law. In the case of refugees, there are a number of additional considerations. These include, and are not limited to, experiencing a disrupted and often traumatic background, sometimes over an extended period of time, cultural and language differences and, depending on the refugee’s age, difficulty in undertaking education and obtaining qualifications to ensure fulfilling employment. All these considerations may play a part in some refugees not being able to adjust well. As the respondent properly concedes, some people may need a second chance for a variety of reasons. The chance to avoid re-offending needs to be balanced with the community’s expectation of protection. The community may not tolerate a number of offences involving violence. The applicant has previously been warned that his conduct could lead to his visa cancellation. The serious nature of the second armed robbery, that is, his repeated and violent criminal conduct, gives weight to the community protection argument. In addition and on the evidence of his criminal records, the Tribunal finds there to be an unacceptably high risk of the applicant committing further offences.
30. The final primary consideration relates to what may be in the best interests of the applicant’s children. This is not the same as considering what the applicant may regard as being in their best interests. The Tribunal considers that it would be in the best interests of those children if the applicant was to retain his Australian visa, and that thereby they retain the option of making contact with him. The children are either at, or fast approaching, an age where their wishes with respect to having contact with their father would become a relevant factor. His visa cancellation means it is likely this opportunity will be denied to them in the short term and probably also in the long term. The separation of a child or children from a parent is always a matter of serious concern to any decision-maker. The Tribunal has earnestly considered, as no doubt did the delegate, the balance required to be addressed when assessing this factor against the other factors set out in the Direction.
31. The applicant has not lived with his children since shortly after the birth of his youngest child. He has had limited contact with the children since, the last being in 2003. He believes the children live interstate with their mother. He has not been active, or successful, in discharging his parental responsibilities - to nurture, act as a positive role model and financially support his children - for most of their lives. In addition, the applicant has demonstrated a lack of early determination to secure contact and visiting rights with his children following his discharge from prison in 2003. From all of this it can be deduced that the children have learned to live without the close or ongoing support of their father. It follows that however desirable it may be for him to be available to his children, should they wish to make contact with him, that availability, even if now called upon, is unlikely to result in greatly shaping the futures of his children. The Tribunal is satisfied that this primary consideration, while of concern, does not of itself or in combination with other factors justify overturning the delegate’s decision to cancel the applicant’s visa.
32. The Tribunal expresses sympathy for the applicant’s mother. If his visa is cancelled and she remains in Australia, as seems likely, she will find herself deprived of the company and support of her only child in her old age. Given that his mother has been his effective carer for him throughout his childhood and his closest relative in his adulthood, her attachment to the applicant is readily understandable. While not nominated as a primary consideration this factor may, as the Direction predicates, be such that, by itself or in conjunction with other considerations, it results in a decision, on balance, which permits a person’s visa not to be cancelled. However, the seriousness and number of offences, their consistency and the lack of the applicant’s ability to appreciate the concerns of the community, particularly with offences involving home invasion and violence, are such that these considerations outweigh the disadvantage which will be experienced by the applicant’s mother from his removal from Australia. The applicant will also no doubt miss his mother. However, his errant behaviour discloses a lack of appreciation for the considerable risks she has undertaken to give him a better life, such as leaving Vietnam as a single parent refugee.
33. The Tribunal has considered the concerns as to the lack of family support, lack of treatment facilities and the difficulties in securing employment and adapting to a different culture after such a long time in Australia if the applicant is to be returned to Vietnam. However, these factors are insufficient to justify overturning the decision under review either individually or in combination with other factors set out in these reasons.
CONCLUSION
34. For the reasons given, the Tribunal affirms the decision under review. The applicant’s visa remains cancelled.
I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision herein of Mr G.L. McDonald, Deputy President
Signed: Ursula Noyé
Clerk
Date of Hearing 17 December 2007
Date of Decision 9 January 2008
Counsel for the Applicant Mr G Hill
Solicitor for the Applicant Maddocks
Advocate for the Respondent Ms K Miller
Solicitor for the Respondent Australian Government Solicitor
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