Nguyen and Minister for Immigration and Citizenship
[2013] AATA 272
•3 May 2013
CATCHWORDS – IMMIGRATION – visa – failure to pass character test – substantial criminal record – exercise of discretion whether to cancel visa – decision affirmed.
CATCHWORDS – IMMIGRATION – Minister’s Direction – international non-refoulment obligations – principles enunciated by High Court in SZOQQ v Minister for Immigration and Citizenship.
CATCHWORDS – PRACTICE AND PROCEDURE – determining time at which material given to Minister electronically has been “given” – whether at least two clear business days before the hearing.
Comcare v Labathas [1995] FCA 1702; (1995) 61 FCR 149; 22 AAR 295; 133 ALR 744
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Herald and Weekly Times Ltd v Victorian Civil and Administrative Appeals Tribunal [2005] VSC 44; (2005) 22 VAR 482
Hong Ye v Minister for Immigration and Multicultural Affairs [1998] FCA 341; (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; 62 ALD 673
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649
Minister for Immigration and Multicultural Affairs v Gungor (1982) 63 FLR 441; 42 ALR 209 (Fox, Fisher and Sheppard JJ) (1993) 42 FCR 276; 113 ALR 655
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349
MZYWA v Minister for Immigration and Citizenship and Refugee Review Tribunal [2013] FMCA 40
NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321
Re BHYK and Minister for Immigration and Citizenship [2010] AATA 662
Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 131 ALD 564; 58 AAR 452
Ridley v Secretary, Department of Social Security (1993) 42 FCR 276; 113 ALR 655
Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578; 102 ALR 19
SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40; (2012) 200 FCR 174; 287 ALR 668; 126 ALD 200
SZOQQ v Minister for Immigration and Citizenship [2011] FCA 1237; (2011) 124 ALD 18
Minister for Immigration and Multicultural Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Wilson v Minister for Immigration and Citizenship [2012] FCA 1421
Acts Interpretation Act 1901, ss 28, 29, 36
Administrative Appeals Tribunal Act 1975, ss 20, 68, 68AA
Administrative Appeals Tribunal Amendment Act 1993, s 22
Electronic Transactions Act 1999, ss 7B, 14A
Federal Court of Australia Act 1976, ss 59, 59A
Judicial Review Act 1991 (Qld)
Legislative Instruments Act 2003
Migration Act 1958, ss 5, 29, 31, 32, 33, 34, 35, 36, 37, 38, 499, 500, 501, 501HA, 501K,
Migration Amendment (Complementary Protection) Act 2011, ss 2, 3 and Sch 1, items 12-15
Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012, ss 2, 3 and Sch 1, items 7 and 8
Safety, Rehabilitation and Compensation Act 1988, s 67
Victorian Civil and Administrative Tribunal Act 1998, ss 146, 157
Administrative Appeals Tribunal Regulations 1976, r 9
Federal Court Rules 2011, r 2.25
Migration Regulations 1994, rr 1.06, 2.01
Direction no.55 – Visa refusal and cancellation under s 501
Australian Treaty Series, 1954, No. 5
Australian Treaty Series, 1973, No. 37
Convention and Protocol relating to the Status of Refugees
International Covenant on Civil and Political Rights
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
DECISION AND REASONS FOR DECISION [2013] AATA 272
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2013/0813
GENERAL ADMINISTRATIVE DIVISION )
ReDUNG NGUYEN
Applicant
AndMINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 3 May 2013
Place: Melbourne
Decision:The Tribunal decides to affirm the decision of a delegate of the respondent dated 27 May 2011 to cancel the applicant’s Class BF Transitional (Permanent) Visa under s 501 of the Migration Act 1958.
S. A. Forgie (sgd)
Deputy President
REASONS FOR DECISION
On 18 February 2013, Mr Nguyen Ngoc Dung was notified that a delegate of the Minister for Immigration and Citizenship (Minister) had cancelled his Class BF Transitional (Permanent) Visa under s 501 of the Migration Act 1958 (Migration Act). He had done so on the basis that he reasonably suspected that
Mr Nguyen does not pass the character test and Mr Nguyen has failed to satisfy him that he does. The particular ground on which Mr Nguyen did not pass the character test was that set out in s 501(6)(a) i.e. that he has a substantial criminal record as defined by s 501(7) of the Migration Act. Since 1990, Mr Nguyen has been convicted of various drug related offences and, in 2001, was convicted of manslaughter and served the full 12 years of the sentence that was imposed for that offence. Having reviewed all of the evidence in light of the Minister’s Direction made under s 499 of the Migration Act, I have decided to affirm the decision to cancel his visa.
SHOULD THE IDENTITY OF THE APPLICANT BE PROTECTED?
While I am reviewing the Minister’s decision under s 501 of the Migration Act, I note that Mr Nguyen has made an application for a protection visa. The decision of the Minister to refuse his application is currently the subject of an application for review by the Refugee Review Tribunal (RRT). Section 429 of the Migration Act requires the RRT to hold the hearing of an application for review in private. Under s 430(1), the RRT must prepare a written statement of its decision and reasons for decision and must give the applicant and the Secretary of the Department of Immigration and Citizenship a copy of the statement it has prepared. Under
s 431(1), the RRT’s Principal Member may publish any written statement of its decision but, under 431(2), must not publish any statement of reasons which may identify an applicant or any relative or other dependant of an applicant.
Unlike the RRT, the Tribunal does not have the power to review a decision to refuse an application for, or to cancel, a protection visa. What it does have, is a power to review such a decision “… relying on one or more of the following Articles of the Refugee Convention, namely, Article 1F, 32 or 33(2); … other than decisions to which a certificate under section 502 applies.”[1] I return to this below but note that s 501K is relevant when the Tribunal is undertaking such a review. In so far as that provision relates to protection visas, it provides:
[1] Migration Act; s 500(1)(c)
“(1) This section applies to a review by the Administrative Appeals Tribunal if the review relates to a person in the person’s capacity as:
(a)a person who applied for a protection visa; or
(b)…; or
(c)a person whose protection visa has been cancelled; or
(d)…
(2)The Administrative Appeals Tribunal must not publish (in electronic form or otherwise), in relation to any review, any information which may identify:
(a)the person; or
(b)any relative or other dependant of the person.
(3)…”.
Section 501K clearly complements the provisions of s 431(2) so that no part of the process of reviewing a decision to refuse to grant an application for a protection visa or a decision to cancel a protection visa reveals the identity of the visa applicant or holder or of his or her relatives and dependants. Confidentiality is maintained whether in the Tribunal or in the RRT.
That brings me to the current application. Although Mr Nguyen is an applicant in the RRT seeking review of a decision to refuse to grant his application for a protection visa, he is not in this Tribunal in his “… capacity as … a person who applied for a protection visa …”. He is in this Tribunal in his capacity as a person whose Class BF Transitional (Permanent) Visa has been cancelled under s 501. Therefore, the confidentiality provisions of s 501K do not come into play.
I have considered whether I should make an order under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) restricting access to the identity of Mr Nguyen and his relatives. The matter necessarily requires me to touch on the fact that Mr Nguyen has applied for, and been refused, a protection visa and to consider matters arising under Australia’s international conventions, including the Refugees Convention. Neither Mr Hughan, of counsel, on Mr Nguyen’s behalf, nor the Minister’s solicitor on his behalf, has asked me to consider making such an order. That is a relevant matter to take into account as is s 35(3) of the AAT Act which requires me to bear in mind, among other matters:
“… that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties …”.
Due regard must, of course, be given to any reasons as to why a hearing should be held in private or evidence or matter not be published for disclosed. That is required by s 35(3) as well. In this case, the matter has already been held in an open hearing and it is not to the point that nobody attended the hearing other than those associated with Mr Nguyen as family or otherwise. It is pertinent, though, that neither legal representative sought an order under s 35. Given the exhortation in s 35 of the AAT Act to the effect that generally matters should be open to public scrutiny and the absence of any submissions to the contrary, I decided not to make a confidentiality order under s 35 on my own initiative.
BACKGROUND
In this part of my reasons, I will set out the facts that I have found on the material and that are not in dispute between the parties.
Chronology of Mr Nguyen’s movements and convictions
In the following passage, I have summarised some of the major events in Mr Nguyen’s life[2] and interspersed among them tables setting out his convictions[3]:
[2] These are taken from Mr Nguyen’s evidence as well as the other documentary material lodged on his behalf and that of the Minister.
[3] The Victorian convictions are taken from the Police Certificate issued by the Australian Federal Police on 17 October 2011 in relation to Mr Nguyen: Exhibit 2 at 1-3. His convictions in Queensland are taken from a computer generated occurrence report provided by the Queensland Police Service: Exhibit 2 at 70-74.
∙ 29 November 1971
Mr Nguyen was born in Vietnam.
∙ 30 April 1975
Fall of Saigon.
∙ Some time after 1975
Mr Nguyen’s father, who had been a member of the South Vietnamese Navy, sent to a re-education camp. Mr Nguyen, together with his older sister and his older brother (Nguyen Ngoc Hung) and younger brother (Nguyen Ngoc Trong), lived with their paternal grandmother in Binh Tuy. Their mother lived with her family in Phan Thiet province. Mr Nguyen completed two years of schooling before he had to leave in order to earn money for the family.
∙ 1981 or 1982
Mr Nguyen’s father was released and, after being reunited with his mother, another sister, Nguyen Thi My, was born.
∙ 1982:
Mr Nguyen’s parents fled from Vietnam to Malaysia with oldest child, Nguyen Ngoc Hung, and youngest, Nguyen Thi My. Mr Nguyen and his other siblings remained with their paternal grandmother and were unaware of their parents’ departure until their father wrote to them from Malaysia.
∙Approximately 1982 or 1983
Mr Nguyen was caught between two boats while swimming in the ocean. He suffered injuries to his head and was hospitalised for a few weeks. He lost the sight in his right eye. He thinks that the accident has affected his memory.
∙ After 1982
A further daughter, Nguyen Thi Hien, was born to Mr Nguyen’s parents while they were in Malaysia.
∙ Approximately 1986
Mr Nguyen and his eldest sister left Vietnam by boat and travelled to Indonesia.
∙ 1986-1987
Mr Nguyen and his sister lived in the Galang Refugee Camp in Indonesia.
∙ 8 July 1987:
Mr Nguyen arrived in Australia as the holder of a category K 1022 (Child) visa.
He and his sister were reunited with his parents and siblings including his sister born in Malaysia and another sister, Nguyen Thi Hieu, who had been born in Australia. His youngest sibling, a brother (Nguyen Ngoc Thao), was born in Australia in approximately 1989 or 1990.
∙ 1987 and 1988
Mr Nguyen completed five or six months at a language school at Collingwood before being referred to a High School in Brunswick where he was placed in Year 9.
∙ Approximately 1988
Mr Nguyen felt that he could not cope with schooling as it was too hard and the English language was too hard. He left school and looked for, and found, work in various factories.
After living with his parents and siblings for five or six months, Mr Nguyen left home. On the basis of his oral evidence, I find that he wanted to be independent. He then lived with Vietnamese friends in Housing Commission flats in Carlton but near those where his family lived.
The first job he found was in a factory where plastic bags were manufactured. He found the job difficult because, due to his limited English, he could not understand the instructions he was given by his employer. The other employees were Caucasian Australians or of Chinese descent and he had difficulty communicating with them.
Mr Nguyen found work as a machinist in another factory where other Vietnamese people were employed.
Mr Nguyen moved from Carlton to similar accommodation in Collingwood where he lived with various people of various ages. He said that he was trying “… to find compatible people to live with.”[4]
[4] Exhibit A at [29]
∙Approximately 1989
Mr Nguyen began a relationship with Tran Loan and he lived with her and her older brother and sister. Both he and Ms Tran were then approximately 18 years of age but Ms Tran was completing Year 10 or 11 of her schooling at the time.
Mr Nguyen, who was then earning approximately $300 per week from his work, gave Ms Tran approximately $150 of it so that she could buy food and other necessities.
His family did not approve of the relationship.
| Date | Court | Offence | Sentence or result |
| 6 September 1990 | Melbourne Magistrates Court | Possess Heroin Use Heroin | Adjourned on $200 bond to be of good behaviour until 2 September 1991 |
∙ 1990-1991
Mr Nguyen’s relationship with Tran Loan came to an end and he left Melbourne to live in Adelaide. He met Ms Joya Brown in Adelaide and a son was born to them in 1991.
∙ 1991
Mr Nguyen returned to Melbourne to visit his family but Ms Brown declined to accompany him. They remained in contact but Mr Nguyen reconnected with old friends and moved in with them in Collingwood. He used heroin.
∙ 1991
Mr Nguyen’s father became aware of his son’s use of heroin, confronted him and told him that he wanted him to accompany his mother on a trip to Vietnam. Mr Nguyen continued to use heroin.
Late in 1991, Mr Nguyen applied for Australian citizenship.
∙ 1991-1992
Mr Nguyen accompanied his mother on the trip to Vietnam. They remained in Vietnam from 28 December 1991 and returned to Australia in April 1992 after visiting both his paternal and maternal grandmothers.
Neither he nor his mother experienced any difficulties with the Vietnamese authorities during their trip. They were cautious, however, because of his father’s having previously been a member of the South Vietnamese Navy.
Mr Nguyen recalled his father’s telling him that he had received a letter advising him that his application for citizenship had been approved.
Mr Nguyen did not realise that he had to attend a citizenship ceremony in order for his Australian citizenship to be granted. He did not contact the Department or follow up on the letter it had written to him.
∙ 1992
On his return from Vietnam, Mr Nguyen telephoned Ms Brown but, from
Mr Nguyen’s point of view, their relationship came to an end when she did not believe him when he told her that he had not travelled to Vietnam to find a wife.Mr Nguyen did not use heroin for approximately a month after his return from Vietnam but started to use again because his friends were still using.
He was unable to find sewing work in a factory and, once he began to use heroin again, he did not want to work at all.
∙ 1993-1994
Mr Nguyen worked with his parents sewing t-shirts and jumpers for a clothing factory but he stopped working for them when he became worried that they would discover he was using heroin.
| Date | Court | Offence | Sentence or result |
| 10 January 1994 | Williamstown Magistrates Court | Possess Amphetamine Fail to Answer Bail Fail to appear on 21 October 1992 Theft | On all: Community Based Order for 12 months to perform 150 hours On both: Community Based Order for 12 months to perform 150 hours |
| 22 September 1994 | Broadmeadows Magistrates Court | Fail to Answer Bail Breach of Community Based Order re 10 January 1994 Fail to appear re 13 June 1994 Attempted Theft of a Motor Vehicle | Community Based Order for 12 months to perform 125 hours Community Based Order extended to 09/01/1996 to perform 200 hours Community Based Order for 12 months to perform 125 hours. Licence Disqualified for 6 months. |
| 23 June 1995 | Melbourne Magistrates Court | Traffick Heroin | Imprisonment 3 months |
| Breach of Community Based Order re 22 September 1994 Burglary | Order cancelled. One each: Imprisonment 3 months | ||
| Possess Heroin Possess Cannabis | On each charge: Imprisonment 1 month. Concurrent and concurrent. | ||
| Breach of Community Service re 22 September 1994 Attempted Theft of a Motor Vehicle | On each charge: Imprisonment 1 month. Concurrent and concurrent. |
On the basis of Mr Nguyen’s oral evidence, I find that his conviction for theft on 10 January 1994 involved the theft of a toothbrush from a chemist. He did not have any memory of being convicted of the attempted theft of a motor vehicle in September 1994.
∙Approximately 1995 to 1999
When Mr Nguyen was released from prison, he had stopped taking heroin but “… could not help but go back to using again and … quickly became addicted again.”[5]
[5] Exhibit A at [66]
Mr Nguyen cannot recall using or possessing amphetamines but does recall using cannabis on occasion.
He supported his habit by selling heroin on the streets of Collingwood. He would be given 10 caps each weighing 0.1 grammes and sell seven of them. For those seven, he would receive $500, which he gave to his supplier, and was permitted to keep the remaining three caps for his own use.
Mr Nguyen tried to stop taking heroin on four or five occasions but was not successful. His attempts included his obtaining medication from a general practitioner.
| Date | Court | Offence | Sentence or result |
| 17 October 1995 | Melbourne Magistrates Court | Possess Heroin (2 charges) Fail to Answer Bail | Fined aggregate $300 |
| 24 June 1997 | Melbourne Magistrates Court | Traffick Heroin (2 charges) | One each: Imprisonment 9 months. Concurrent |
| Reckless Conduct Endanger Serious Injury | Imprisonment 1 month. Concurrent. | ||
| Use Heroin (2 charges) | On each: Imprisonment 14 days. Concurrent and concurrent. | ||
| 29 May 1998 | Melbourne Magistrates Court | Traffick Heroin | Intensive Correction Order for 6 months |
| 28 September 1998 | Melbourne Magistrates Court | Breach of Intensive Correction Order re 29 May 1998 | Fail to Appear – Warrant Issued |
∙1999
In 1999, Mr Nguyen decided to move to Queensland because he wanted to stop using heroin. He travelled there with a friend who was not a user and hoped that, because he knew no-one else in Queensland, he would be able to stop using heroin.
He planned to reduce the amount that he was then taking and, once he had used all that he had carried with him to Queensland, he would seek medical help to deal with his withdrawal symptoms.
Before he put his plans into action, he was arrested for possession of heroin.
| Date | Court | Offence | Sentence or result |
| 6 April 1999 | Inala Magistrates Court | Possessing Dangerous Drugs (on 19 March 1999) | Convicted and fined $900 in default imprisonment 30 days. Time to pay 6 months. |
| 11 May 1999 | Melbourne Magistrates Court | Breach of Intensive Correction Order re 29 May 1998 | Fail to Appear – Warrant Issued |
∙July 1999
Mr Nguyen met Luan Minh Nguyen, who was also known as “Hieu”. He was involved in the killing of Hieu on 5 July 1999. I return to this at […]-[…] below.
| Date | Court | Offence | Sentence or result |
| 6 September 2001 | Utensils, possession of, for drugs | 5 days | |
| 7 November 2001 | Brisbane Supreme Court | Manslaughter (on 5 July 1999) | Conviction recorded Declare time spent in pre-sentence custody be deemed as time already served under this sentence 850 days (BTN …07.99 & ..09.01) |
| 30 April 2002 | Court of Appeal Queensland | Application for leave to appeal against sentence imposed on 7 November 2001. | Application refused |
∙ 29 January 2008
Mr Nguyen had screwed wood screws into the rear of his cell door. He was determined to be guilty of having possessed or concealed something that is not approved but, other than the revocation of his residential status, no further punishment was imposed.[6]
[6] Exhibit D at 22
On the basis of his oral evidence, I find that Mr Nguyen had wanted to use the screws to hang his clothes on.
∙ 16 May 2008
Mr Nguyen was found guilty of a minor breach being the offence of organising or taking part in gambling. As a penalty, he was not permitted to watch television for 24 hours.[7]
[7] Exhibit D at 17
On the basis of his oral evidence, I find that he and the others involved in the game were playing for soft drink vouchers.
∙ 14 November 2008
The Offender Management Team reviewed Mr Nguyen’s Offender Management Plan. It encouraged him to take advantage of any opportunities that are provided and to demonstrate compliance with the plan. The recommendation was:
“In summary, offender Nguyen is recommended to participate in his recommended program when assessed as ready, willing and able. He is strongly recommended to attend literacy classes to achieve successful participation in the program. He is further recommended to refrain from incurring any breaches during the next review period. He is also to remain drug free and maintain employment in Industries.”[8]
[8] Exhibit 2 at 146
∙30 January 2009
Mr Nguyen applied to the Queensland Parole Board (Parole Board) for parole.
∙ 13 February 2009
Eligible for parole
∙ 2-15 September 2009
Mr Nguyen was asked to supply a urine sample on 2 September 2009 for the purpose of drug analysis. He supplied it and the test indicated a positive result for Norbuprenorphine.[9]
[9] Exhibit 2 at 123
∙ 22 September 2009
A 3 month plan from 21 September 2009 to 21 December 2009 was implemented as a result of the positive drug test. It established behaviour goals to be met by Mr Nguyen and short and long term aims for him to aspire to.[10]
[10] Exhibit 2 at 149-153
∙ 1 October 2009
Mr Nguyen was found guilty of having provided a positive test sample. The penalty imposed was separate confinement for seven days.[11]
[11] Exhibit 2 at 123
∙9 October 2009
Mr Nguyen received a letter from the Parole Board recording its previous correspondence with him, its decision-making process and the material it had considered. The letter referred to the passage from the sentencing Judge’s
remarks I have set out at [18], and also noted that Mr Nguyen had a:
“… significant previous criminal history spanning two states including of a somewhat similar nature, such as your drug offence committed in Victoria.”[12]
[12] Exhibit 2 at 99
The letter then continued:
“The Board consented to you lodging a new application with the Board at any time from 19 December 2009.
The Board recommended that you liaise with Offender Reintegration Support Scheme staff or you’re [sic] … [illegible] transitions coordinator in order to obtain suitable comprehensive release plans, including accommodation, community agencies and employment opportunities.
The Board further recommended that you continue to demonstrate an ongoing commitment to positive progression of institutional and behavioural compliance throughout the next review period, with a view to attaining a low security classification at a low security facility.”[13]
[13] Exhibit 2 at 100
∙ 4 November 2009
Mr Nguyen lodged a further application for parole. His application contained detailed information regarding his work and progress in gaol, his strengths and weaknesses and the areas in which he might fail to reintegrate into the community and his strategies for addressing that possibility.
∙ 28 May 2010
The Board again refused Mr Nguyen’s application. Its letter to him repeated some of the same information set out in its previous letter. Among the additional points it made to Mr Nguen were:
∙“The Board noted that you have completed the Transitions program however an assessment of your needs indicated that you ought to participate in intervention programs notably Getting SMART. However you have refused.
You have indicated that your refusal is because of your low literacy levels and non English speaking background.
The Board was informed that Getting Smart is a 12 session substance abuse program which aims to help you stop abusing alcohol and drugs. You will learn how to change your self defeating thinking, how to be in charge of your emotions and actions, and how to work towards getting a better quality of life.
The Board considered that knowledge of personal triggers and strategies developed from the program may have assisted you to lessen the risk that you pose to the community. The Board was concerned that your refusal to participate in this Intervention program deprived you of the opportunity to gain knowledge and explore strategies that might have assisted you to avoid re-offending in the future.
The Board was aware of your reasons for being unwilling to do the program and, while not insisting that you do the program. It recommends that you reconsider your current stance so that you may that opportunity offered to you. [sic] In this way you could reassure the Board that you have minimised your risk to the community by addressing your offending behaviour in a professional and constructive manner.
Successful reintegration needs the support of a positive and appropriate release plan as well as evidence of a workable relapse prevention plan which would address drugs which have been a major component of your offending cycle
The Board considered the relapse prevention plan you submitted. However the Board concluded that your plan was inadequate to inhibit your offending behaviour having regard to the circumstances of your offending behaviour, features that are personal to you both at the time of offending and now and the apparent triggers that lead to offending behaviour by you.
In considering the plan the Board was not convinced that you have sufficiently responded to its major concerns which are the triggers that led to your major offences and protective factors in relation to this type of offence. These remain largely unaddressed.
Within a short period of time following release from custody, you may be immersed with experiences, people and situations that have in the past contributed to your offending, addictive behaviour and also in your incarceration.
It would reassure the Board and give it greater confidence if you can become versed in a plan to assist you to remain crime free thus reducing your risk of re-offending against future victims and the community as a whole.”[14]
[14] Exhibit 2 at 118-119
∙7 June 2010
Mr Nguyen was reported to the Identified Drug Users Committee (Committee) as having returned urine test positive to Buprenorphine and Norbuprenorphine.[15] This resulted in Mr Nguyen’s separate confinement for seven days.[16]
[15] Exhibit 2 at 78
[16] Exhibit 2 at 85
∙ 25 June 2010
A further Substance Abuse Management Plan was developed for Mr Nguyen for the period from 1 July 2010 to 1 October 2010. It was in terms similar to those of the earlier Plan.[17]
[17] Exhibit 2 at 154-157
∙ 2 July 2010
The Board wrote to Mr Nguyen confirming its decision to refuse his application for parole. It advised him that if he wished to pursue the request he had made for reasons, he would need to apply under the Judicial Review Act 1991 (Qld).[18]
[18] Exhibit 2 at 121
∙ 7 July 2010
The Substance Abuse Management Plan was reviewed by the Identified Drugs Users Committee. It found that he had language difficulties and that he continued to indicate that he had not used. The Education Officer was to assist Mr Nguyen with his literacy. [19]
[19] Exhibit 2 at 78
∙ 11 August 2010
At the next review, Mr Nguyen continued to maintain that he was not positive.[20]
[20] Exhibit 2 at 78
∙ 12 September 2010
Mr Nguyen returned a negative urine test.[21]
[21] Exhibit 2 at 78
∙ 15 September 2010
The Substance Abuse Management Plan was suspended.[22]
[22] Exhibit 2 at 78
∙ 2010
Mr Nguyen’s father died in approximately 2010.
∙ 21 January 2011 to 10 March 2011
On 21 and 24 January 2011, 3 February 2011 and 10 March 2011, Mr Nguyen was given a warning for failing to attend his employment duties.[23]
[23] Exhibit 2 at 136
∙ 24 January 2011
Mr Nguyen was classified as a high security prisoner having regard to his six breaches of discipline during his imprisonment, his current and previous employment and appropriate conduct within his accommodation area, his previous offences and the violent nature of one of them and the possible cancellation of his visa.[24]
[24] Exhibit 2 at 83-92
∙27 May 2011
A delegate of the Minister decided to cancel Mr Nguyen’s visa, which was then a Class BF Transitional (Permanent) Visa.[25]
[25] Exhibit 1 at 39
∙ 8 July 2011
On his release from prison, Mr Nguyen was transferred to immigration detention.
∙ 14 September 2011
Mr Nguyen applied for a protection visa.
∙ 5 October 2011
Mr Nguyen’s application was refused.
∙ 1 February 2012
The Refugee Review Tribunal (RRT) affirmed the decision but referred the matter to the Minister for his consideration under s 417 of the Migration Act.
∙ 5 March 2012
Mr Nguyen applied to the Federal Magistrates’ Court (now the Federal Circuit Court) for judicial review of the RRT’s decision.
∙ 2 April 2012
The Minister declined to exercise his power under s 417.
∙ 31 January 2013
Federal Magistrates’ Court order that a writ of certiorari issue quashing the RRT’s decision and a writ of mandamus issue requiring it to consider the matter according to law. The basis of the judgment was that the RRT had not properly considered all of the evidence relating to Mr Nguyen’s contention that he would not be able to obtain household registration should he return to Vietnam and, as a consequence, would be unable to survive.[26]
[26] MZYWA v Minister for Immigration and Citizenship and Refugee Review Tribunal [2013] FMCA 40; Reithmuller FM
∙ 18 February 2012
The Federal Court handed down its decision in Wilson v Minister for Immigration and Citizenship[27] to the effect that the Department had not correctly notified the visa holder of the cancellation. The Department accepted that it had incorrectly notified Mr Nguyen. It renotified him.
[27] [2012] FCA 1421; Edmonds J
∙ December 2012
Mr Nguyen’s mother died.
∙ 25 February 2013
Mr Nguyen applied to the Tribunal for review of the decision.
THE EVIDENCE
Events preceding Mr Nguyen’s conviction for manslaughter
I have set out Mr Nguyen’s history in Vietnam but add his late mother’s description of what befell her son at that time:
“My husband and I, and our children, were treated terribly by the Communist regime in Vietnam and have suffered a lot. I was forced to flee Vietnam with my husband and two of my children, leaving three behind in the care of their paternal grandmother. No person should ever have to make that choice. I was devastated that [we] were separated from our children.
After we had arrived in Australia, Dung suffered a life threatening head injury. I was told his head was crushed between two boats. I believe he suffered permanent injury to his head and his eye as a result. I am not sure what treatment his grandmother was able to get for him in Vietnam. After he came to Australia, An and our oldest son Bill took him to hospital to have his eye checked. They said that nothing could be done. Dung is blind in one eye.
The child I was forced to leave behind in Vietnam was a very gentle and sweet natured boy, who did whatever he could to help me in the home when his father was away in detention. After Dung came to Australia at 15, he really struggled. He was changed and did not remember things so well. He also did not have good relationship with his father. He was still a quiet boy, but he would not listen to what we said, he just followed others. My husband had little tolerance for him and threw him out of home many times. It was very difficult. My husband, after eight years of brutal ‘rehabilitation’ by the Vietnamese regime, he was easily angered and not himself.”[28]
[28] Exhibit D at 35
Mr Nguyen’s eldest brother, Nguyen Ngoc Hung, has made statements to the same effect.[29] He and the rest of the family were relieved to see their brother in 1987 but it was not an easy time. His parents were working 60 hours each week in an effort to survive. The family comprised seven or eight people living in a two bedroom flat in Carlton and it would be a few years before they could move into a proper house.
[29] Exhibit D at 35 and Exhibit C
Mr Nguyen, his brother said:
“11. … was a teenager in a strange country, without close adult male bonds, and in an environment where we lived at the time where drug and alcohol abuse was common. It was nothing like the remote village we grew up in.
12.Nguyen had had little time to get to know our father given our father had been detained for eight years when Nguyen was little, and the fact that our parents had fled within a short time from our father’s release. This may have made it more difficult for Nguyen to feel part of the family and to listen to our father.
13.Sometime after Nguyen arrived, he started to hang around people that we were not really comfortable with and he also got a girlfriend and moved out. We would still see him on weekends. I reached out to him a few times and asked him to go home to live with our parents. He would do that for a few months but would then have to leave again because he could not cope with how crowded it was.
14.Nguyen was a quite [sic] teenager. He was always very friendly and helpful to us when he was around, and although he did not always listen, he never ever argued or raised his voice, even when my father and I screamed at him about what he was doing to himself.
15.We didn’t realize how badly things were going with him for a while, but when I did, I took him to a doctor to get him help for his addiction. He promised me he’d quit and he did. I was proud of him and he spent more time at home, but after a while his friends came around again and he would end up leaving with them.
16.My father was very sad about what was happening and my mother cried, but I don’t think they knew how to handle it. They also had many other children to look after. They worked hard. My father worked in a factory dying fabric in Coburg. He worked from 7am until 7pm for many years and after he would get home from work, he would do sewing with my mother.
17.We were raised well, but my parents and their children, particularly us older ones, faced tremendous obstacles and Nguyen fell on them. I still feel immense sadness and regret at what he had experienced and what he ended up being involved with once he had gone to Queensland.”[30]
[30] Exhibit D at 35
Mr Nguyen described his first conviction in 1990 for possession and using heroin as being “just a small thing”. By a “small thing”, he meant that it involved only one cap or a small wrap weighing 0.1 grammes and worth about $50. He had not wanted to resume his drug taking after his return to Melbourne from Adelaide but he saw his friends using. It was “peer pressure”, he said, that led to his starting to use once more. He sold to his customers, who were other users, in amounts of $50 to $100. He never sold larger amounts or to other dealers. His sales took place in the street. When he was apprehended in Queensland, he had 1.2 or 1.4 grammes of heroin in his possession, he said. He had taken a larger amount from Melbourne and had used the difference.
In giving oral evidence, Mr Nguyen could not recall why he did not comply with the first good behaviour bond; it was long time ago. He did not understand later good behaviour bond because he did not understand what the Magistrate had told him to do.
Now that he has given up using heroin, Mr Nguyen says, he can see that he was in a very dark place when he was using and dealing. Now that he has seen the light, he feels much better.
Mr Nguyen’s conviction for manslaughter
In his statement dated 18 April 2003, Mr Nguyen described the way in which he came to know Hieu and how he came to be involved in Hieu’s death. He said:
“75. Chung introduced me to some of his friends, including a man called ‘Hieu’ … At the same time, I was introduced to Dung, Lam, Dien and Tam. I did not realize that they were heroin users. We did not take heroin together although I was still using heroin at the time.
76.Hieu and his girlfriend Julie asked if they could stay with us because they were homeless. Chung and I agreed that they could stay with us but I did not know that Hieu had a reputation because of his history as a heroin user and thief.
77.After Hieu had been staying with us for about a month, the Vietnamese Association asked to meet with me because the local residents had complained that Hieu had been stealing property and that he was a drug user.
78.I told Hieu that he had to leave because of what the Association said but Hieu threatened that he would kill me. Dung, Lam, Lien and Tam were present at the time and Hieu also threatened that he would kill them before he left.
79.A few hours after Hieu left, we talked about going to look for him. Dung, Lam, Dien and Tam decided to go out looking for him. When they had located Hieu, the others invited me to for a coffee with them and we all got in the car together.
80.We drove to a park and got out of the car. I asked Hieu why he had threatened us and he responded by threatening me again. I went back to the car and got a rolling pin and hit Hieu on his back.
81.I am not sure what the others said to the police or the court about what happened and I am not sure what happened next.
82.After I had hit Hieu, I got in the car and closed the doors, I want to do anything more to him. [sic] The care was facing the opposite direction to where my friends were so I did not see what had happened. A little while later, the others got in the car without Hieu and they told me that he had gone home in another car but I did not ask for any more information about this. I thought it was possible that another car had come and gone.
83.When the others got back in the car, we drove back home and I did not know what had happened to Hieu.”[31]
[31] Exhibit A
As to how he felt about Hieu’s death, Mr Nguyen said:
“85. I did not find out that Hieu had been killed until two days later when the police came to arrest me. …
86.When I realised that Hieu had been killed I was very shocked and very sad. I feel guilty because I hit Hieu. He certainly did not deserved to die.
87.My lawyer advised me that if I entered a guilty plea for manslaughter I would receive a lesser sentence than if I was convicted of murder. My lawyer advised me that the statements of each of the accused were different so I am not sure what actually happened or what they said. I am only to tell my recollection of what happened that night and I know that I only hit Hieu once with a rolling pin.”[32]
[32] Exhibit A
In his oral evidence, Mr Nguyen said that he had thought that the rolling pin was light and did not have anything in it. He had used it as a stick to hit Hieu but had not seen it as a weapon. Mr Nguyen thought that he was using heroin at the time. He feels very sorry for Hieu, he is sorry that he hit him and he is sorry that he drowned.
The sentencing Judge, Helman J described the circumstances in which Hieu was killed in the following way:
“The deceased, Luan Minh Nguyen, was nineteen years old when he was killed. He died a horrible death. On the night of 5 July 1999 he had been taken by five young men and a boy aged thirteen to Collingwood Park near Ipswich where he was brutally assaulted. He died as a result of his injuries and then his body was pushed over a cliff into a lake formed in a flooded open-cut mine.
The next night Luan’s body was found in the water among the reeds on the edge of the lake about a metre from the bank. When it was removed from the water the police officers found a piece of electrical cord across his face and passing over his shoulders, and another piece of electrical cord wound around his neck and tied in a knot.
The pathologist who performed the post-mortem examination of the body concluded that Luan did not drown – there was no water in his lungs. The doctor found, however, a number of significant injuries on the body. There were abrasions, lacerations, and contusions to the front and back of the trunk, to both arms and both legs, and to the face. There was severed bruising to the scalp over the back of the head and neck. There were severe fractures to the back and base of the skull. There was severe brain damage with swelling, scattered small internal haemorrhages, and areas of haemorrhage over the surface of the brain. Bruising to the subcutaneous tissues of both arms and legs, and severe bruising to the soft tissues of the face was evident. There was also a ligature mark around the deceased’ neck.
The extent and pattern of the injuries were consistent with the use of a blunt instrument or instruments to strike the head, trunk, and limbs. There was no autopsy evidence pointing to asphyxia contributing to death: the force used with the ligature had been sufficient to leave a mark on the deceased’ neck, but not sufficient to cause a break of the hyoid bone which is a classic sign of strangulation. It appeared that the ligature, while having a degree of force used with it, was not sufficient to cut off the air to the lungs of the deceased; but it is possible that the ligature may have affected blood flow to the brain and thus contributed to the death of the deceased. The findings at the autopsy suggest that Luan suffered for a period of at least a few minutes after the infliction of the head injuries. It was found that he died as a consequence of traumatic head injuries; possibly compounded by the effects of strangulation. It was difficult to distinguish between the injuries which could be attributed to the fall and injuries acquired otherwise.”[33]
[33] Exhinit 1 at 47-48
Justice Helman sentenced Mr Nguyen on the basis that he and another offender had struck and strangled Luan. The others were a party to the plan to threaten the deceased and aided the attackers by their encouragement at the time of the assault. The attack took place because Luan was alleged to have stolen money and goods of no great value.
The sentencing Judge found that only one of the offenders had expressed any early remorse. That was Dien Cong Duong, who had confessed to a person who had taken him to the police station. Mr Nguyen had not indicated any such remorse.
Drug tests in Queensland prison
Mr Nguyen said that he could not precisely recall the circumstances of the two positive drug tests while he was in prison. He had some memory of the incident in 2009 and said:
“94. I remember that in 2009, I had been in prison for 10 years and I have been refused parole. I felt depressed and a friend offered me some medication which they give to prisoners who are trying to stop taking heroin. I that that it is called Subutex. I took this medication and when I had a urine test, it came back positive. I knew that the medication that I had taken was not heroin so I did not think that it was addictive and I hoped that it would just make me feel better.
95.From the time I was imprisoned in 1999, I was clean from any drugs and other than these two occasions, I did not use any drugs again. I have not used heroin since before I was arrested in 1999.”[34]
[34] Exhibit A
The records held by Corrective Services record that Mr Nguyen’s explanation for his taking the drug was that he was upset that his parole had been refused two months before.[35] When asked why he had returned a second positive drug test, Mr Nguyen is recorded as saying that he had no reason for it. In imposing sentence, the authorities took into account his language difficulties and the effect of the result on his chances of obtaining parole.
[35] Exhibit D at 25
I note that Dr Sue McCulloch, a Consulting Psychologist who had given a pre-sentence psychological report dated 26 October 2001, had noted that:
“Mr Ngyen indicated that his general physical health was unremarkable.
Nevertheless, he has used heroin over a period of time, finding that it causes him to feel as though there is ‘something wrong in my head’, meaning that he apparently loses concentration and ‘forgets things’.
Prior to him using heroin he was ‘fine’.”[36]
[36] Exhibit D at 26 and Exhibit 8 in the proceedings before the sentencing Judge, Helman J, in the Supreme Court of Queensland
Employment in Queensland prisons
Apart from the years from mid 2004 to early 2010. Mr Nguyen worked
in the following positions during his imprisonment:[37]
[37] Exhibit D at 1
From
To
Occupation
5 June 2002
8 September 2003
Trades Person
9 September 2003
16 September 2003
Cleaner
16 September 2003
5 November 2003
Grounds Keeper
13 November 2003
8 April 2004
Trades Person
12 April 2010
20 September 2010
Industry Team Leader
14 October 2010
29 November 2010
Senior Industry Worker
29 November 2010
13 December 2010
Industry Team Leader
13 December 2010
8 July 2011
Industry Overseer
The Prison Employment Case Report dated 15 February 2011 reported that, during the reporting period (which is unstated) Mr Nguyen had failed to report to work on four occasions without a valid reason being that he had a sick certificate. The report went on to state, however, that he:
“… Continues to display a positive [sic] towards his employment prisoner Nguyen completes all tasks given to him in the required time frame and to a good standard.
Prisoner Nguyen complies with WPH&S requirements and rules in E Block industries and follows directiond [sic] from industries staff.
Prisoner Nguyen will inform staff if he has made a mistake with his current work and ask for advise [sic] so he does not make the same error again.”[38]
[38] Exhibit D at 1
Courses undertaken in Queensland prisons and in immigration detention
During March 2009, Mr Nguyen completed a Transitions Course. The Course included five core modules: Introduction; Staying Out: Problems and Strategies; Getting Out: What to Expect; Using Community Resources; and Closing Session. It also included six elective modules completed by Mr Nguyen: Parole; Employment; Centrelink & Identification; Accommodation & Housing; Dealing with Change in Relationships; and Goal Setting. He completed the programme on 27 March 2009.[39] The two segments that he did not complete were described as “Wfd Using Community Resources 2009.1” and “Wfd Managing Addiction Alcohol Tobacco and Other Drugs 2009.1”.[40] In September 2010, he completed a course in participating in OHS processes and another in applying basic communication skills.[41] Both courses were in partial completion of a BSB10107 Certificate I in Business.[42]
[39] Exhibit D at 14
[40] Exhibit D at 19
[41] Exhibit D at 19
[42] Exhibit D at 7
An undated note signed by a Program Deliver Officer at an unidentified Queensland Prison was addressed to Mr Nguyen. It was headed “Making Choices Program” and reads:
“I have checked your criminal history and due to the introduction of the ROR-PV assessment you are no longer required to participate in the MAKING CHOICES program as your score falls below that required for consideration for program interventions.”[43]
[43] Exhibit D at 13
I note that there was a Risk of Re-Offending Assessment – RoR-PV – undertaken on 1 June 2008 by Queensland’s Corrective Services. It reads:
| “Question | Risk Item | Score |
| Has the offender been convicted of a Breach of Justice Order (current offence or previous offence)? | No | -2 |
| Has the offender been convicted of an assault or related offences (current offence or previous offence)? | No | -1 |
| Number of convictions in the past ten years (orders and prison sentences): | 0 | -4 |
Age at admission: | 27-34 | 0 |
Sub Total:-7
Add 11 to total Score: 11
Total:4
(Range of Scores 1 to 22: 22 being the highest risk of re-offending)”[44]
[44] Exhibit D at 22
Mr Nguyen had been placed on the waiting list to undertake the Getting Smart course. In response to a recommendation from the Offender Management Team, he was removed from that list on 14 April 2010. The recommendation had been:
“Offender Nguyen has been removed from the Getting Smart waitlist. He was interviewed by Program Officers who raised he hash [sic] huge responsivity issues. Offender Nguyen is unable to read nor understand English very well at all and therefore is not a suitable candidate for the course.”[45]
[45] Exhibit D at 6
On 23 September 2010, Mr Nguyen completed a One Star Food Safety and Hygiene Training course offered by Serco.[46]
[46] Exhibit D at 3
Psychological report
The only medical evidence that I have is the psychological assessment prepared by Dr McCulloch as part of the pre-sentencing material in Queensland. She set out the history she had obtained from Mr Nguyen. That history includes Mr Nguyen’s recital of his life with his grandmother and of his travelling to Indonesia with his sister. That recital makes no reference to his having come to his family in Melbourne. Instead, it suggests that he had come to Australia and been housed in a refugee camp where he had not known English and did not have his family around him. He used his “street wisdom” to get on with his life, Dr McCulloch reported. Her description of the circumstances in which the offence occurred also comes from what she was told by Mr Nguyen. It is not a description that is consistent with that given by Helman J and I will return to that.
Dr McCulloch concluded her report with the treatment Mr Nguyen would require to support his resolve to abstain from drug use. She said:
“I consider that in order to develop a new direction in Mr Nguyen’s life, he requires ongoing, intensive therapy to address his illicit substance use and maintain his reportedly present drug-free existence. Whilst he reports being drug-free in prison at present, I have concerns, given the abovementioned argument relating to conformity and acceptance, that this man will be able to remain drug-free in a custodial setting where he may easily have pressure applied to him to involve himself with others involved in various ways, in the ‘drug scene’. Should this occur, it has ramifications for any programmes involving his release from prison.
He also requires specialised psychological intervention to address the significant issues surrounding his past traumatic experiences, and family rejection and abandonment; the underlying factors in his alleged eruption of rage and therefore antisocial behaviour.
Additionally, he requires specific assistance to learn English, along with support to integrate into the Australian community so as to facilitate the client’s developing a prosocial network which meets his social needs, along with his needs for acceptance in his own right.
Further to this, the client would benefit from vocational skills training, perhaps in the area of the fishing industry, to promote competencies which lead to success in the area of employment, rather than him continuing in the direction of destruction. This option would require that he receive close, but supportive supervision in the community, which would expose him to a strong, achievement-oriented work ethic.
Having addressed the above, he would need to be ‘tested’ in vivo – in a community setting so that he could apply his newly found knowledge and experience in a realistic environment whereby he would be unlikely to re-offend.
In sum, I consider that Mr Nguyen requires general and specific psychological intervention in order to ‘shore up’ his reported resolve to completely overcome his dependencies, and regain a prosocial role in society which satisfies himself and the community.”[47]
[47] Exhibit D at 26
Family support
Mr Nguyen has seven brothers and sisters. His eldest brother, Nguyen Ngoc Hung, lives in Melbourne and has established his own business over ten years ago. He did so after first completing a year of Computer Science at University and then helping his parents in their work. A friend taught him the marble trade and he now owns the business with his wife’s uncle. He and his wife have two daughters aged 13 and 11 years.
One sister lives in Sydney but she is presently in gaol. Another brother also lives there but he is employed in a factory and has a girlfriend. Mr Nguyen’s sister, Nguyen Thi My, studied law and works in Melbourne where she lives in the family home with her two younger siblings. Nguyen Thi Hieu studied at University and now works in a bank. His youngest sibling, Nguyen Ngoc Thao, is studying accounting at University. The youngest child, Nguyen Thi Hien, is married with a child and is studying pharmacy at a University. All of Mr Nguyen’s siblings are Australian citizens.
Mr Nguyen has a paternal aunt who lives in the United States and another who lives in Vietnam. On his mother’s side, he has an aunt who lives in Sydney, another who is married and lives in Vietnam and a third who is a Buddhist nun and also living in Vietnam. Mr Nguyen Ngoc Hung has stated that he and his siblings have not been close to their extended family who live in Vietnam. They have not seen them for a number of years. Mr Nguyen’s late mother wrote of her sisters’ lives in a letter addressed to the Minister on 29 February 2012:
“I spend a couple of months a year in Vietnam because I feel it is important for my health, but I cannot return there permanently. … I stay with my elder sister at a women only temple where she is a nun. My other two sisters are widows who live hand to mouth, surviving by selling things on the street and on some money that I send from Australia. They have one child each and they are still at high school. They knew Dung as a child, but do not know him anymore. They struggle to manage their own lives, and would not be able to support him. He has some problems and will need a lot of practical, financial and emotional help and support. There is no way they could provide that for him.”[48]
[48] Exhibit D at 35
Mr Nguyen’s mother spoke of her having missed her son very much and of not having visited him in Queensland because he had asked that she not do so. She described him as “… a very loveable, somewhat simple person and I know that he is good and kind. I will do all that I can to give him the support he needs to continue on a good path.”[49] She expressed her fears for him should he be required to return to Vietnam:
“I have grave fears for what will become of him if he is forced to return to Vietnam. I cry at the thought of it, and have cried many times since I heard from my children that he could be returned there. I will worry about him so much if he has to go back. I believe that should my son be forced to return to Vietnam, he will suffer terribly and he may die alone. All of his family are here. I do not believe that he will be able to care for himself and I also worry a great deal that he will get into trouble with the authorities there – they do not treat people with compassion. Dung has not had to look after himself for a long time, and I do not believe he will be able to do it in a country that he does not know, and without the strong support of his family here in Australia.
I would be eternally grateful if my son would be given another chance to stay in Australia: his home since he was a child, the final resting place of his father, and the home of his family.”[50]
[49] Exhibit D at 35
[50] Exhibit D at 35
Mr Nguyen said that he had not wanted to see his family while he was in gaol in Queensland because he was ashamed of what he had done. His brother, Nguyen Ngoc Hung, said that the family had lost touch with him a little while before he went to gaol but they tried to see him after he had gone. Nguyen Ngoc Hung said of his brother:
“38. My brother Nguyen is a good person. I honestly and completely believe that. He is one of eight siblings and we love him a lot. Nguyen is very nice and very calm. He is never angry with anyone. What happened in Queensland was completely out of character. He knows that he had to be punished for what happened and he has been. He spent many years in Brisbane, and I understand he worked hard there and stayed out of trouble.
39.Nguyen is a good brother. He is quite [sic] and never upset. Sometimes I would get very mad at him and yell at him. I still think about that, but he would never get angry with us or upset. When he was young he never thought through consequences, but he is now 40 years old and he has hopes for the future.
40.I am very happy to see him now. He is like normal. He is alive, and drug free and the happy and calm Nguyen that I knew when he was younger. I can see in him that he is determined to stay clean and I want to be able to support him in doing that and in building up his life here again, with his family, where he belongs. If Nguyen could come out of detention, he could work with me and I would teach him everything I know. He has said he would like to do this very much and that he wants to marry, settle down and have a family.”[51]
[51] Exhibit C
Nguyen Ngoc Hung will give his brother a job either in his stone masonry business or in another business he has begun. He will permit his brother to live with him and his family but, if Mr Nguyen should start to use drugs again, he will not permit him to remain. Instead, he will find alternative accommodation. Nguyen Ngoc Hung said that he would try to find drug programmes to assist his brother. If his brother were required to return to Vietnam, he said in oral evidence, he would be sad. He would not know if he would ever see him again but he would try to maintain telephone contact.
Future plans and hopes
Mr Nguyen addressed his future plans and hopes in his statement:
“97. If I were released into the community I would stay with my brother Hung and his family. He has told me that he can stay with him to begin with and eventually, I would like to find my own house. It is my intention to look for work.
98.With the support of my family I would not need to use drugs again. I have no desire or craving to do so. I am more mature than when I was imprisoned. I don’t have contact with any of the former friends that I used to use drugs with. I would like to marry and start a family here in the country that has been my home for so long.
99.I understand that I have committed very serious offences but I have learnt from the long time that I have been in gaol that it’s not worth it. I can assure the Australian community that I will not return to drugs and will not re-offend.”[52]
[52] Exhibit A
Fears and concerns about returning to Vietnam
Mr Nguyen expressed concerns should he be required to return to Vietnam. He is concerned for the way he will be treated by the Vietnamese authorities because his father was a member of the South Vietnamese Navy before the Fall of Saigon. When he and his mother had returned to Vietnam in 1991 and 1992, they had been very careful when visiting his paternal grandmother. They had travelled by night and had been careful not to attract attention.
Nguyen Ngoc Hung also expressed concerns for his brother’s well-being should he be required to return to Australia. The remaining members of the family will be distressed. Although things have changed in Vietnam, Nguyen Ngoc Hung is concerned that, in many ways, it is:
“… remains a brutal regime that crushes the weak and the poor. … [I]n Vietnam, he will be at the mercy of a regime that views people they think have drug problems as undesirables and who treats them by locking them up away from the rest of society and torturing them.”[53]
[53] Exhibit C at [44]
Vietnam
Among the material lodged on behalf of Mr Nguyen are the following documents: a paper prepared by the United Kingdom Home Office entitled “Country of Origin Information Report – Vietnam” and dated 20 April 2012 (UKHO paper); a paper prepared by the Immigration and Refugee Review Board of Canada (IRRB) entitled “Vietnam: Process for being reinstated onto a household registration” and dated 26 February 2009 (IRRB household registration paper No. 1) and another also by the IRRB entitled “Vietnam: Whether an individual’s rights to obtaining a passport, employment, education and other civil rights are affected if he or she does not have a household registration document” (IRRB household registration paper No. 2) and dated 27 February 2009; and a paper by the United States Department of State entitled “2011 Country Reports on Human Rights Practices – Vietnam” and dated 24 May 2012 (USDS paper).[54]
[54] Exhibit E at 40-43
A. An overview of Vietnam and its political and social framework
The USDS paper sets out a comprehensive and contemporary analysis of the political, executive and judicial structures in Vietnam. It describes it as an authoritarian state ruled by a single party with security forces reporting to civilian authorities. In its Executive Summary, the USDS paper states:
“The most significant human rights problems in the country were severe government restrictions on citizens’ political rights, particularly their right to change their government; increased measures to limit citizens’ civil liberties; and corruption in the judicial system and police.”
The paper goes on to expand upon these matters both in the Executive Summary and in the body of the paper. Of particular relevance in the context of this case is any discrimination, whether it be societal or institutional. The paper identifies some societal discrimination based on ethnicity, sexual orientation and gender identity as well as HIV/AIDS status. None is reported regarding those who are addicted to a substance. Although reference is made to arrest procedures, treatment in detention, administrative detention, conditions in prison and in detention centres and the denial of fair and public trials, no mention is made in the paper of the treatment of persons who are drug addicts. Mention is also made of arrest and imprisonment or detention for those who are regarded as political activists as well as for those accused of other offences, no mention is made of persons’ being arrested or detained because they are children of those associated with the former South Vietnamese government or, as was the case with Mr Nguyen’s father, with its armed forces.
B. Drug users in Vietnam
The USDS paper noted that, in September 2011, the Vietnamese government had reported:
“… that more than 32,300 drug users – the large majority of whom were administratively sentenced to forced detoxification without judicial review – were living in the 121 drug-detention centers countrywide. According to the government, the stated population did not exceed the intended capacity of the centers, which had separate facilities for women. At these centers, according to a September report from a nongovernmental organization (NGO), authorities allegedly forced individuals to perform menial work under harsh conditions and mistreated them (see section 7.b.). After his November visit, the UN special rapporteur on health criticized these centers as ineffective and counterproductive.”[55]
[55] Exhibit E at 43; 3-4
Section 7.b of the report reads in part:
“Prisoners convicted by courts routinely were required to work for little or no pay. Authorities routinely required individuals, detained under administrative decree in reeducation centers and detention centers for sex workers and drug users, to work for little or no pay under administrative and legislative regulations. They produced food and other goods used directly in prisons or sold on local markets, reportedly to purchase items for their personal use. There were credible reports that private companies hired individuals in drug detention centers.
…
In September an international human rights organization reported that authorities forced individuals in the detention centers for drug users to engage in unpaid or underpaid work as part of their treatment. In response, MOLISA officials confirmed that ‘therapeutic labor’ was one part of the treatment for individuals in these centers but asserted that it was not required of all individuals and was remunerated. The officials also reported providing orders to provincial officials to halt construction of any new drug detention centers and cease all actions that violated labor regulations.”[56]
[56] Exhibit E at 43; 44-45
C. Household registration
The UKHO paper referred to information it had obtained from the USDS to the effect that every person residing in Vietnam had to be listed on a household Registry. That was part of a system that existed for the surveillance of all citizens but it was a system that was less intrusive than it had been previously. Authorities focused particularly on those suspected of being involved in unauthorised political or religious activities. The UKHO paper recorded a passage from correspondence received from an international human rights lawyer which read, in part:
“The Household Registry [ho khau] is the major form of proof that a person has an established address and is officially associated by blood or marital relationship to the other family members listed in the Registry. In demonstrating identity and residence for the purpose of obtaining any benefits or official documents (i.e. passports or exit documents) the Registry functions as the primary proof without which local officials will more likely than not deny benefits to anyone not part of the Registry. According to a 2006 Human Rights Watch (HRW) report, household registration documentation in Vietnam is essential for legally obtaining a job, collecting food rations, attending government schools, receiving health care, travelling, voting and contesting administrative abuses … According to an October 2008 Viet Nam News article, the Deputy Head of the Hanoi Police Office for Administrative Management and Social Order indicated that the Hanoi Police expected to spend 20 days checking household registration books searching for ‘suspected people’ and ‘unusual relationship[s]’ … The article reported that those not registered with local police or who haven’t informed the police of an address change ‘would be punished’.”[57]
[57] Exhibit E at 40; [26.03]
The IRRB household registration paper No. 2 repeated information of the sort set out in the UKHO paper and added:
“… [T]he Vice Chairman of the National Assembly’s Legal Committee stated that household registration is linked to the government’s ‘preferential policies and [is] essential for people living in disadvantaged, mountainous and remote regions’ (Viet Nam News 6 Apr. 2006). The Vice Chairman went on to argue for the removal of ‘cumbersome procedures’ practised by law enforcement agencies (ibid.).
…
According to Intellasia, a news service that provides English translations of Vietnamese domestic news (n.d.), the July 2007 law on residency changed some previous requirements for permanent residence status (8 June 2007). For example, citizens no longer needed to prove ownership of a property; instead, they can now register if they have legal accommodation (8 June 2007). Additionally, people in Hanoi, Ho Chi Minh City, Hai Phong, Da Nang and Can Tho can obtain permanent residence status if they can prove that they have lived in one of these cities for one year as opposed to the previous requirement of three years (Intellasia 8 June 2007; Vietnam News Agency 2 July 2007). A Vietnam News Agency article indicates that approximately 2.2 million people are eligible for household registration books under the new residency law effective 1 July 2007 (2 July 2007).”[58]
[58] Exhibit E at 42
The IRRB household registration paper No. 1 set out the documents required of a person living in Vietnam in order to be reinstated onto a household registration. It reports that those who are Vietnamese expatriates, who remain Vietnamese nationals and who return to live in Vietnam must produce one of the following documents:
“∙ Vietnamese passport or travel document which has a stamp verifying entry … at the border gate;
∙Proof of [Vietnamese nationality] granted by the Vietnam representative agencies overseas, accompanied by proof of the permission [to return] to Vietnam issued by the related authority;
∙Certificate of Vietnamese nationality granted by the People’s Committee of provinces and cities directly under central authority, accompanied by proof of the permission [to return] to Vietnam for permanent residence issued by the related authority. …”[59]
[59] Exhibit E at 41
At the hearing in the Tribunal, Mr Nguyen said that he had travelled to Vietnam in 1991 on an Australian travel document.
LEGISLATIVE FRAMEWORK
Visas
Under the Act, the Minister may grant permission to a non-citizen (known as a visa) to travel to and enter Australia, to remain in Australia or to do both.[60] There are classes of visas.[61] Some are specified in the Act itself[62] and some are prescribed in the Migration Regulations 1994 (Regulations).[63] The classes prescribed in the Regulations are:
“(a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and
(b) the following classes:
(i) transitional (permanent); and
(ii) transitional (temporary).”[64]
A class of visas referred to in Schedule 1 of the Regulations is referred to by the code allotted to the class in the heading of the item in that Schedule. In the case of a transitional visa, it is known either as a “transitional (permanent): BF”[65] or a “transitional temporary: UA”.[66] Prior to its cancellation, Mr Nguyen held the former.
[60] Migration Act; s 29
[61] s 31(1)
[62] ss 32-38
[63] s 31(3)
[64] Regulations, r 2.01
[65] Regulations, r 1.06(b)(i)
[66] Regulations r 1.06(b)(ii)
Cancellation of visas on basis of visa holder’s failure to pass character test
As Mr Nguyen held a transitional (permanent) visa, the provisions of
s 501 apply to him.[67] That means that the Minister has power under s 501(2) of the Migration Act to:
“… cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
[67] Migration Act, s 501HA
The “character test” is set out in s 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa)…
(ab)…
(b)…
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)-(v)…
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is
2 years or more; or(e)…”
The term “imprisonment” means “… any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence.[68] There was no suggestion that Mr Nguyen passes the character test for his
12 year sentence alone means that he clearly does not.
[68] s 501(12)
Section 501G sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister’s decision relates to a person, such as Mr Nguyen, who is in the migration zone. The “migration zone” includes mainland Australia.[69] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision.
[69] Migration Act, s 5(1)
The Minister’s Direction
If a person fails the character test, s 501 does not require the Minister to cancel that person’s visa or to refuse that person’s application for a visa. It confers a power on the Minister to cancel or refuse but it is a discretionary power that is subject to limits. The Minister will necessarily delegate power and may give directions to those who exercise that delegated power as well as to those such as the Tribunal who review the exercise of that power. Those directions are given under s 499 of the Migration Act, which provides, in part, that:
“(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) …
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3) …
(4) …”
Section 499(2) underlines the principles stated in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[70] (Peko-Wallsend). The boundaries of the exercise of any statutory discretionary power are drawn from the form of the subject-matter, scope and purpose of the legislation in which the power is found. His Honour said:
“… In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation in the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”[71] As a rule, the power to give directions and make guidelines is determined by reference to “... the subject matter, scope and purpose of the statute ...”.[72]
[70] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ
[71] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
[72] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309. This approach accords with the approach to statutory interpretation later endorsed in Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490 at [69]; 381; 855; 509 by McHugh, Gummow, Kirby and Hayne JJ when they said:
Quite apart from these boundaries, there is a practical limitation of another sort on the power of the administrative decision-maker. That is a limitation on the manner in which the administrative decision-maker weighs evidence relating to the matters that are relevant and the weight he or she gives one matter over another. Justice Mason addressed that limitation as well after first setting out the general principle. His Honour said:
“… [I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …. I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation …, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. … [A] court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.”[73]
[73] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 41-42; 309-310
Within the wider boundaries of the Migration Act, s 499 permits the Minister to determine the weight that will be given to the various considerations to be taken into account in reaching a decision under, in this case, s 501. Even when the Minister has done so and the Tribunal is bound to have regard to it, its role:
“… is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[74]
The Tribunal must consider matters set out in any direction and follow it in considering the particular circumstances of a visa holder and coming to a decision. If it were to be in conflict with the Migration Act, the Migration Act must prevail. This is recognised in s 499(2) of the Migration Act.
[74] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590, 70 per Bowen CJ and Deane J
The Minister’s Direction: outline of Direction
The difficulty that I have had in understanding the High Court’s approach and, so initially, the broader principles it enunciated, follows from the fact that it would seem to assume that the Tribunal has an uncurtailed power to review the Minister’s decision to refuse a protection visa on the basis that it did not meet the criterion specified in s 36(1) of the Migration Act.
As was noted in [26] of the reasons, though, the Tribunal’s powers of review are set out in s 500 of the Migration Act. In so far as it is relevant, it provides:
“Applications may be made to the Administrative Appeals Tribunal for review of:
(a)…
(b)decisions of a delegate of the Minister under section 501; or
(c)a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugee Convention, namely, Article 1F, 32 or 33(2);
…”.[121]
[121] Migration Act; s 500(1)
A decision to refuse to grant a protection visa or a decision to cancel a protection visa is reviewable by the RRT.[122] From my reading of the judgment of Keane J and of the transcript, the general power of review given to the RRT would not seem to have been drawn to the High Court’s attention. In view of the RRT’s role on review and the very limited review that may be undertaken by the Tribunal under s 500(1), it is difficult to see what power the Tribunal would have once the High Court decided that Article 33(2) has no part to play in a decision made under s 36(2)(a). If a protection visa cannot be refused or cancelled relying on Article 33(2), the Tribunal appears to have no power to review a decision made under s 36(2)(a) at all.[123] On the principles adopted by the High Court, the appropriate tribunal in which to seek review of the Minister’s decision was arguably the RRT and not the AAT.
[122] Migration Act; s 411
[123] The outcome would be no different if Article 32 of the Refugees Convention had been relied on. An application may be made to Tribunal for review of a decision to refuse to grant a protection visa or to cancel a protection visa relying on that Article or on Articles 1F or 33(2). Unlike Article 1F, which is part of the definition of a “refugee”, Article 32 is not part of the definition. It gives a refugee a right not to be expelled except in certain circumstances and, like Article 33, determines when a country is not obliged to continue to permit a refugee to remain and does not determine when a person is a refugee.
The Tribunal’s continuing role in relation to decisions made under s 36(2)(a)
In light of the High Court’s judgment, it would seem that the Tribunal has a continuing role in relation to decisions made under s 36(2)(a) where a decision to refuse a protection visa has been made on the basis of Article 1F of the Refugees Convention. That is the sixth paragraph of Article 1, which defines or describes a “refugee” for the purposes of that convention. Article 1F provides:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.”
MORE RECENT AMENDMENTS OF THE MIGRATION ACT
The amendments
Since the Minister’s delegate made the decision that led to the High Court’s judgment in SZOQQ v MIC, s 36 of the Migration Act has been amended by the Migration Amendment (Complementary Protection) Act 2011 (2011 Amendment Act)[124] and the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (2012 Amendment Act).[125] The latter Act commenced on
17 August 2012[126] and the former on 24 March 2012.[127] I have included this Attachment in my reasons so that the principles in SZOQQ v MIC are seen against a background of s 36 in its current form. Undertaking the exercise has assisted me in my analysis of the case and reaching the view set out in Attachment B and in understanding the way in which cl 9.4 of the Direction takes effect in having regard to Australia’s non-refoulment obligations.[128] I have relied on passages from the relevant Explanatory Memorandum to explain that background. On my current understanding, they would seem to reflect the way in which the section, as amended, is intended to operate.[124] Act No. 121 of 2011; 2011 Amendment Act; s 3 and Schedule 1, Items 12-15
[125] Act No. 113 of 2012; 2012 Amendment Act; s 3 and Schedule 1, Items 7 and 8
[126] 2012 Amendment Act; s 2
[127] 2011 Amendment Act; s 2(1), Item 2 and see also Proclamation F2012L00650 dated 21 March 2012
[128] See [94]-[99] above
Of note in this case is the addition of s 36(2)(aa), so that the first two paragraphs of s 36(2) now read:
“A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …”
Section 36(2)(c) has been added to make provision for family members of a person referred to in s 36(2)(aa) as is made for those of a person referred to in s 36(2)(a).
Two of the concepts referred to in the new s 36(2)(aa) are developed in two other new provisions: ss 36(2A) and (2B). They develop the concept of when a non-citizen will suffer “significant harm” and when there is a “real risk” of harm of that sort occurring:
“(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
The 2011 Amendment Act also inserted s 36(2C) in the Migration Act. It provides for the circumstances in which, even if the criterion specified in s 36(2)(aa) as explained in ss 36(2A) and (2B) is met, that criterion will be taken not to have been satisfied. Section 36(2C) provides:
“A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non-citizen committed a serious non-political crime before entering Australia; or
(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia’s security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.”
The principles underpinning the amendments
The Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 leading to the enactment of the 2011 Amendment Act explains that:
“The Migration Amendment (Complementary Protection) Bill 2011 (the ‘Bill’) amends the Migration Act 1958 (the ‘Act’) to introduce greater efficiency, transparency and accountability into Australia's arrangements for adhering to its non-refoulement obligations under the International Covenant on Civil and Political Rights (the ‘Covenant’), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the ‘CROC’) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the ‘CAT’). Protection from return in situations that engage these non-refoulement obligations is often referred to as complementary protection", that being protection under international treaties that is additional to the protection given to refugees under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (the ‘Refugees Convention’).
The purpose of the amendments in this Bill is to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia's arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.”
The relationship between ss 36(2)(a) and 36(2)(aa)
Section 36(2)(a) is drafted in light of Australia’s obligations under the Refugees Convention whereas s 36(2)(aa) is drafted in light of its obligations under international conventions other than the Refugees Convention. Section 36(2)(aa) expressly excludes from its scope those persons coming within s 36(2)(a). The international conventions in light of which s 36(2)(aa) was drafted are the International Covenant on Civil and Political Rights (Covenant) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the Explanatory Memorandum referred. That document states at [65]-[66]:
“The purpose of new paragraph 36(2)(aa) is to provide for a criterion for a protection visa on the basis of a non-refoulement obligation contained or implied in the Covenant or the CAT, if the Minister is not already satisfied that:
∙the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention; or
∙the non-citizen is not ineligible for the grant of a protection visa as provided in new subsection 36(2C) (see item 14).
This retains the primacy of the Refugees Convention and means that non-citizens found to be owed protection obligations under the Refugees Convention do not require further assessment of other non-refoulement obligations.”
The basis of ss 36(2A) and 36(2B) in developing s 36(2)(aa)
In providing the circumstances in which a non-citizen will suffer “significant harm”, s 36(2A) is said by the Explanatory Memorandum to be based on the non-refoulment obligations implied under Articles 2 and 6 of the Covenant and under the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.
The Explanatory Memorandum at [87]-[88] explains:
“The purpose of new paragraph 36(2C)(a) is to provide when a non-citizen is taken not to satisfy the protection visa criterion in new paragraph 36(2)(aa) on grounds which mirror Article 1F of the Refugees Convention. The intended effect of this provision is to provide the same exclusion to the complementary protection regime as applies to those who make a valid application for a protection visa claiming protection under the Refugees Convention.
The purpose of new paragraph 36(2C)(b) is to provide when a non-citizen is taken not to satisfy the protection visa criterion in new paragraph 36(2)(aa) on grounds which mirror Article 33(2) of the Refugees Convention. The intended effect of this provision is to provide the same exclusion to the complementary protection regime as applies to those who make a valid application for a protection visa claiming protection under the Refugees Convention.”
The reference in the Explanatory Memorandum to Article 33(2) and the Refugees Convention in the context of a claim for a protection visa under that convention would not seem to reflect the law as it has now been explained by the High Court in its recent case of SZOQQ v MIC.
Reconciling a non-citizen’s ineligibility for protection and Australia’s non-refoulment obligations
A non-citizen’s right not to be refouled in circumstances set out in the Covenant or in CAT are inalienable just as they are inalienable if they arise under Article 33 of the Refugees Convention. That right has to be reconciled with a non-citizen’s non-right, as it were, to a protection visa when he or she does not bring him or herself within the scope of s 36(2)(aa) of the Migration Act. The Explanatory Memorandum explains at [89]-[90]:
“…[E]ven if a non-citizen is considered ineligible to be granted a protection visa, Australia would be bound by its non-refoulement obligations not to remove the non-citizen to a country in respect of which there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal to that country, there is a real risk that the non-citizen will suffer significant harm.
Australia must, however, balance the delivery of its humanitarian program with protecting the Australian community and prevent Australia from becoming a safe haven for, for example, persons who have committed war crimes, and others of serious character concern. There is no obligation imposed on Australia to grant a particular form of visa to those to whom non-refoulement obligations are owed. In the event that a non-citizen is ineligible to be granted a protection visa, but is owed a non-refoulement obligation, such a person will not be removed from Australia while the real risk of suffering significant harm continues, but will be managed towards case resolution, taking into account key considerations including protection of the Australian community; Australia’s non-refoulement obligations; and the individual circumstances of their case.”
LODGEMENT AND RECEIPT OF DOCUMENTS BY ELECTRONIC TRANSMISSION
The Tribunal’s Registry drew to my attention the fact that Mr Nguyen’s solicitors had lodged material on his behalf by email at 6:05pm on Friday 19 April 2013 and copied the material to the Minister’s solicitors by means of the same email. The hearing was scheduled to be heard on Wednesday 24 April 2013. The question was raised whether this met the time limits imposed by s 500(6H) of the Migration Act. That provision requires that any material to which I may have regard has to have been given to the Minister at least two business days before the hearing. I asked the parties whether they wished to make any submissions on the matter given that the email had been sent after what might be regarded as normal business hours. They did not wish to do so. In indicated that I thought that the material had been provided within the time permitted under s 500(6H) and referred to the Electronic Transactions Act 1999 (ET Act) as support for my view. As they were not familiar with that legislation they indicated that they would welcome some written reasons on the matter.
Section 500(6H) of the Migration Act
Section 500(6H) applies to Mr Nguyen because he has made an application to the Tribunal for review of a decision relating to him and made under
s 501 and he is in the migration zone. It provides that:“… the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”
The expression “business day” is defined in s 500(7) to mean:
“… a day that is not:
(a)a Saturday; or
(b)a Sunday; or
(c)a public holiday in the Australian Capital Territory; or
(d)a public holiday in the place concerned.”[129]
Lodging and serving, giving or sending information and material in electronic form
[129] Except for the addition of paragraph (c), the definition is consistent with the way in which “business day” is defined in the Acts Interpretation Act 1901.
A.Lodgement
Section 500(6H) is not concerned with lodgement in the Tribunal but I will begin with that because it assists in illustrating the way in which the ET Act takes effect. What is meant by the word “lodge” was considered by the Full Court of the Federal Court in Hong Ye v Minister for Immigration and Multicultural Affairs[130] (Hong Ye) in the context of the Federal Court Rules when they said:
“… [W]hen the question is not whether a proceeding has commenced but merely whether a document has been ‘lodged’ there is no difficulty with the conclusion that the document has been ‘lodged’ when it is physically deposited with the court or tribunal or when it has come into the possession of the court or tribunal by some other means such as by post or facsimile transmission.” [131]
[130] [1998] FCA 341; (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358; Burchett, Lehane and Finkelstein JJ
[131] [1998] FCA 341; (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358 at 473; 332; 363. In the case of an application, care must be taken to distinguish between “lodgement” and “making” that application. The distinction is not relevant in this context but I note the views Dr McRae and I expressed on the issue in Re Phillips and Inspector-General in Bankruptcy [2012] AATA 788; (2012) 131 ALD 564; 58 AAR 452 at [429]-[441]; 682-686; 574-577
Lodgement by facsimile transmission or by electronic means has been permitted in the Tribunal since 16 June 1993 when s 68(2) of the AAT Act took effect.[132] It provides:
“Subject to such requirements (if any) as are prescribed, such documents may be lodged by means of electronic transfer.”
[132] Administrative Appeals Tribunal Amendment Act 1993; No 31 of 1993; s 22
Regulation 9(3) of the Administrative Appeals Tribunal Regulations 1976 (Regulations) was introduced with effect from 15 December 1997.[133] Regulation 9(3) provides:
“For the purposes of subsection 68(2) of the Act, a document may be lodged with the Registrar by facsimile transmission or electronic mail.”
However a document is lodged:
“The Registrar shall cause the date on which a document was lodged or received at his office to be recorded on the document.”[134]
[133] Administrative Appeals Tribunal Regulations (Amendment) 199; No. 349 of 1997; r 4.1
[134] Regulations; r 9(1)
When a document is lodged or received in a paper form, as it is when it is handed to Registry staff at the Tribunal’s counter, the question of the day and time it is received would seem to be fairly clear. It is lodged or received at the moment of time and on the day of receipt or lodgement i.e the moment it came into its possession. If handed to a staff member, the time can be recorded, the time is printed on the document. It can only be handed to a staff member when the Registry is open.
When a document is sent to the Tribunal by facsimile transmission or by electronic means, the issue becomes more difficult for both can be received at any time of the day whether the Registry is open or not. The Registrar’s obligation under r 9.1 is to record the time at which it was “lodged or received”. A question might arise, as it does in the case of lodgement by facsimile transmission or by electronic mail, whether a staff member must be physically present at the time that the document is physically deposited in order for it to be regarded as having been lodged or received. Regulation 9(1) does not take the matter any further because a requirement that the Registrar cause the date of lodgement or receipt to be recorded on the document does not equate with a requirement that the Registrar, or his deputy, was present at the moment of lodgement or receipt and made the record at that moment. The principles stated in Hong Ye would not seem to require it.
B. Serving, giving or sending a document and time at which it is received
B.1 Traditionally by personal delivery or post
In the case of serving or giving a document, however that is expressed, the Acts Interpretation Act 1901 (AI Act) sets out avenues by which that may be done. Those avenues may be modified or broadened by other legislation.[135] The avenues provided for by s 28A by reference to whether a document is to be served, given or sent to a natural person or a body corporate. In the case of a former, service, giving or sending may be undertaken by delivering it to the person personally or by leaving it at, or sending it by pre-paid post to, the address of the place of residence or business last known to the person serving the document. In the case of a body corporate, it is carried out by pre-paid post as set out in s 28A(1)(b). I note that s 28A does not confine delivery by personal or postal means to delivery within business days or business hours.
[135] AI Act; s 28A(2)
The time of service or the giving or serving of a document is a matter of evidence but, if there is no evidence leading to a different conclusion, s 29 of the AI Act is a deeming provision that is used to determine when a notice sent by post is taken to have been served, given or sent. That deeming provision has effect by reference to time a letter would be delivered in the ordinary course of post and so, in the modern world, generally excludes a Saturday, Sunday and any holiday.
Section 36(1) of the AI Act is concerned with the calculation of time but it does not suggest that a reference to a period of time expressed in days or before, until or after a specified day is to be determined at any particular time of day. Where an Act requires or allows a thing to be done and the last “day” for doing it is a Saturday, Sunday or a holiday, “then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday”.[136] Only the definition of “holiday” gives some suggestion that the fact that the place for doing the thing is closed may be relevant but it must be “closed for the whole day”.[137] If it were open for part of the day, it would not be a holiday and would not be excluded from the calculation of time under
s 36(2).[136] AI Act, s 36(2)
[137] AI Act, s 36(3)(b)
B.2 Electronically
The note to s 28A of the AI Act states that the Electronic Transactions Act 1999 (ET Act) deals with giving information in writing by means of electronic communications. The ET Act has been enacted to facilitate electronic transactions
and for other purposes.[138] It provides:
“… a regulatory framework that:
(a)recognises the importance of the information economy to the future economic and social prosperity of Australia; and
(b)facilitates the use of electronic transactions; and
(c)promotes business and community confidence in the use of electronic transactions; and
(d)enables business and the community to use electronic communications in their dealings with government.”[139]
[138] ET Act; Long title
[139] ET Act; s 3
Part 2 of the ET Act is headed “Application of legal requirements to electronic communications”. Division 2 of Part 2 is concerned with the way in which requirements under Commonwealth laws can be met electronically. It is concerned with matters such requirements to give information in writing, to sign it, copyright and retention. Part 2A makes additional provision for contracts involving electronic communications. Section 7B of the ET Act provides:
“Part 2A and Division 2 of Part 2 do not apply to the practice and procedure of a court or tribunal. For this purpose, practice and procedure includes all matters in relation to which rules of court may be made.”[140]
[140] ET Act; s 7B(1)
Section 14A of the ET Act comes within Division 3 of Part 2. As it is not a provision coming within either Part 2A or Division 2 of Part 2, it applies to this Tribunal as well as for matters arising under laws such as the Migration Act. Section 14A provides:
“(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b)the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become aware that the electronic communication has been sent to that address.
(2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3)Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.”
B.2.1Time of receipt when sent electronically to an address designated by the addressee
As Mr Nguyen’s solicitors sent the material to the address designated on the Tribunal’s website as the address to which Victorian residents should send emails, rather than to another electronic address used by the Tribunal, s 14A(1)(a) of the ET Act would seem to apply rather than s 14A(1)(b). That means that the time of receipt is dependent only on the “… time when the electronic communication becomes capable of being retrieved by the addressee …” being the Tribunal at the address it has designated. Unlike the situation that applies under s 14A(1)(b), it is not relevant to decide when the addressee became aware that the electronic communication had been sent to it by the solicitors.
As s 14A(1)(a) applies, the time when it was “capable of being retrieved” (emphasis added) was 6:05pm on Friday 19 April 2013 whether anyone was aware of its arrival or not. That would seem to be the time of its receipt and so, for the purposes of r 9(3) of the Regulations and s 68(2) of the AAT Act, the time of its lodgement.[141] There is nothing in s 14A(1)(a) of the ET Act that suggests that the Registry had to be open or even to be staffed in order for his application to be received. There is nothing to suggest that it had to be a business day. As received equates with its being lodged, a document or material can be lodged or received outside Registry hours or business hours and on a day other than a business day.
[141] Although s 4 of the Evidence Act 1995 makes it clear that it does not apply to proceedings in the Tribunal, I note that s 161 would lead to the same outcome in determining the time of receipt of a document sent by electronic transmission.
There is nothing in the AAT Act or in the Regulations that would seem to contradict this conclusion. Indeed, it seems to me that the history of the Regulations supports it. The history supports because, until r 9(3) of the Regulations was amended to refer to, for the purposes of s 68(2) of the AAT Act, lodgement by electronic mail as well as by facsimile transmission, r 17 had prescribed the hours for which each Registry would be open for business. Regulation 17 was repealed and not replaced by the Administrative Appeals Tribunal Regulations (Amendment).[142] At the same time, r 4 of those amending Regulations amended r 9(3) to include electronic lodgement. The omission of any prescriptive hours for the Registry’s operation is consistent with lodgement in a form that can be undertaken regardless of whether the Registry is staffed or not and whether it is open or not.
[142] Statutory Rules 1997 No. 348; r 6.1
B.2.2 Time of receipt when sent to an address other than a designated address
I do not have any evidence whether the address to which Mr Nguyen’s solicitors sent the material is an address designated by the Minister’s solicitors. If it is, then the preceding paragraph would apply. If it is not, then the time of receipt of Mr Nguyen’s solicitors email would have been whenever the Minister’s solicitors became aware that the electronic communication had been sent to that address. In this case, the Minister’s solicitors have not suggested that they did not receive the material in time. On another occasion, however, it may be that solicitors are not working at that time for some reason or other and might not see the email until the following Monday morning. That would raise issues under s 500(6H) of the Migration Act as it would not have been given “at least two business days” before the hearing. It might have left the Tribunal without recourse to relevant material and prejudice the applicant for review.
There are practical ways for ensuring that this does not arise. The first is to obtain a designated address from the recipient for that would overcome the difficulties of s 14(1)(b) by taking the matter back into the realm of s 14(1)(a). If that is not possible, a telephone call advising of the email might be advisable once it has been sent. A third is to resort to the old fashioned means of personal delivery of material. A fourth is to reach an agreement and I turn to that now.
B.2.3 A contrary agreement
Paragraphs [143] to [147] must be read subject to the proviso in the opening words to s 14A of the ET Act. They are that the section applies “unless otherwise agreed between the originator and the addressee of the electronic communication …”. The agreement could only relate to the time at which the electronic communication is received. It could not, in a case such as this, purport to alter the requirements of s 500(6H). What an agreement could do is to overcome the consequences I have described in [146] had the Minister’s solicitors not been aware until the Monday morning that the material had been sent to them by email on the Friday night. An agreement would not have permitted Mr Nguyen’s solicitors to send the material on the Monday or Tuesday for a Wednesday hearing. I would not have been permitted to have regard to it on any interpretation. They would still have had to send the material electronically before the Monday or Tuesday but they and the Minister’s solicitors could have agreed that if it was sent electronically before that time then it would be taken to have been received by the Minister’s solicitors at the time it was sent and regardless of whether they had become aware it had been sent or not.
Finally, I should mention s 500(8) of the Migration Act for it is easily forgotten. It defines what is meant by a “business day” for the purposes of s 500. A public holiday is obviously not a business day but, when a person is working anywhere in Australia other than the Australian Capital Territory (ACT), it is easy to forget that a public holiday in the ACT is not a business day either. That is so whether that day is a public holiday in the rest of Australia or not. Family and Community Day would provide an example in 2013 for, apart from Western Australia, that day, 30 September 2013, is not a public holiday elsewhere in Australia. Canberra Day, which fell on 11 March 2013, could have been overlooked by a person in most States and Territories other than South Australia, Tasmania and Victoria where it was a public holiday but for another reason.[143]
[143] Adelaide Cup Day, Eight Hours Day and Labour Day respectively
I certify that the one hundred and forty nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: …............K.Randall (sgd).........................
Kathryn Randall for Leah Berardi, Associate
Date of Hearing 24 April 2013
Date of Decision 3 May 2013
Counsel for the Applicant Mr Greg Hughan
Solicitor of the Applicant Ms Rebecca Webb
Refugee & Immigration Legal Centre Inc
Solicitor for the Respondent Ms Amanda Graham
Clayton Utz
“ The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute … The meaning of the provision must be determined ‘by reference to the language of the instrument as a whole’ … In Commissioner for Railways (NSW) v Agalianos …, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed …” (citations omitted)
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