Nguyen and Minister for Immigration and Multicultural Affairs
[2001] AATA 146
•27 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 146
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/ 827
GENERAL ADMINISTRATIVE DIVISION )
Re VAN NGOC NGUYEN
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date27 February 2001
PlaceSydney
Decision The decision under review is affirmed
...........[sgd. J Block]............
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - deportation - non-citizen present for less than 10 years when deportable offence committed - risk of recidivism and threat to Australian society - applicant came to Australia as a child - discussion of relevant principles
Migration Act 1958 ss. 200, 201
Crimes Act 1900 (NSW) s. 99
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544
Nikac and others and Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65
Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 145
Hong Teng Ung v Minister for Immigration and Multicultural Affairs (1998) AATA 833
Dung Chi Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 28
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
REASONS FOR DECISION
The Applicant seeks the review of a deportation order made on 13 May 2000 against him; the conviction (referred to henceforth in these Reasons as "the relevant conviction") in respect of which the deportation order was made, is the Applicant's conviction on 13 November 1998 for robbery in company, committed in June 1996; and for which the Applicant was sentenced to a term of imprisonment of two years together with an additional term of 2 years.
The Applicant appeared on his own behalf and Ms Sharon Hanstein appeared for the Respondent. The Tribunal had before it the T Documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with one exhibit (Exhibit R1) which is an "Update Immigration Report" dated 8 February 2001. In addition pages 89-91 (inclusive) of the T Documents, which relate to a pre-sentence report dated 11 November 1998, contain edits in the form of blanked-out portions; Ms Hanstein furnished the Tribunal with replacement pages in respect of the pre-sentence report without any such edits.
It is convenient in order to set the scene, and by way of background, to commence by including a number of documents or extracts from documents, which were submitted to the Tribunal or were contained in the T Documents.
(a) The Respondent's Statement of Facts and Contentions, contains a useful chronology of relevant events, and also the Respondent's contentions as to relevant law; it reads as follows:
DATE EVENTS T Doc Ref
01/02/78 1985 05/06/91 14/11/94 27/02/95 17/03/95 15/06/96 07/10/97 20/10/97 05/11/97 09/03/98 06/06/98 09/06/98 05/08/98 31/08/98 29/10/98 13/11/98 02/03/99 22/03/00 30/03/00 13/05/00 26/05/00 06/06/00 13/10/00 Applicant born in North Vietnam Applicant left Vietnam, and travelled to Hong Kong where he lived in a refugee camp for 5 years Arrived in Australia on a refugee visa Convicted of possess prohibited drug and fined $100 (Lidcombe Children's Court) Convicted of 2 counts of supply prohibited drug, and made the subject of a control order for 18 months with an additional term of 6 months, and for 12 months respectively, both from 19/12/94 (charge date) (Bidura Children's Court) Convicted of possess prohibited drug, and goods in custody, and fined $300 and $200 respectively (Lidcombe Children's Court) Committed robbery in company - dealt with by court on 13/11/98 Taken into custody Convicted of 3 counts of malicious damage and made subject of 3 years supervised recognisance (s558) (Parramatta Local Court) - expires 19/10/00 Convicted in Fairfield Local Court of Possess unauthorised firearm -6 month concurrent Possess loaded firearm in public place –12 month minimum plus 4 months additional, concurrent (varied on appeal on 09/03/98 to 8 months minimum plus 8 months additional with conditions -release subject to supervision) Escape from custody (of police) -6 months concurrent All Sentences run from 07/10/97. (Effective total term after appeal of 8 months minimum plus 8 months additional Appeal against conviction and sentence of 05/11/97, conviction confirmed, sentence varied. Minimum term for convictions of 05/11/97 expired. (Sentence for later convictions backdated to 07/06/98 Prison offence -assaults 157 - 28 days off contact visits Prison offence -throwing articles -3 days cells Harm reduction certificate -drug course Not guilty plea entered in relation to robbery in company charge, followed by trial until 02/09/98 when guilty verdict given. Convicted and sentenced on 13/11/98. Relapse prevention certificate -drug course Convicted of robbery in company committed on 15/06/96. Sentenced to 4 years – minimum 2 years plus additional 2 years (from 07/06/98). Warning of possible liability for deportation given to Applicant Applicant interviewed by Department at Silverwater NSW Parole Board -Intention to refuse parole Deportation order made Parole Board determined that Applicant not be released following expiration of non-parole period. (For further consideration on 20/02/01- see Update Immigration report from parole officer of 08/02/01) Minimum term of sentence for robbery in company expired Murder charge dismissed (see Update immigration report from parole officer of 08/02/01) 34 52 78 78 78 73 38 38,80 26,79 26,79 26 28 38 72 38 72 29 60 39 8 131 25
LEGISLATION AND CONTENTIONS
The decision to order the deportation of the Applicant was made under ss200 and 201 of the Migration Act 1958 ("the Act"), which relevantly provide as follows:
200.The Minister may order to be deportation of a non-citizen to whom this Division applies.
201. Where:
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) when the offence was committed the person was a non-citizen who:
(i) had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; or
...and(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the Person
3. The Applicant was liable for deportation by reason of his conviction for robbery in company, for which he was sentenced to four years imprisonment on 13 November 1998. He had been in Australia for less than 10 years on the date on which this offence was committed, namely 15 June 1996, having arrived on 5 June 1991.
4. The Minister has issued "General Direction -Criminal Deportation - No 9" under s499 of the Act to provide guidance to decision makers in considering the making of deportation decisions ("the General Direction"). The General Direction is binding on the Tribunal
The General Direction provides that a decision maker, when considering whether a decision to deport a non-citizen under s200 should be made, should have due regard to the importance placed by the Government on the two primary considerations that are identified, but should also adopt a balancing process which takes into account all relevant considerations. The two primary considerations are the expectations of the Australian community and the best interests of any children.
Expectations of the Australian community
6. There is an expectation that the community will be protected from the actions of criminals and that action will be taken to remove unacceptable levels of risk of crime (par 9). In assessing the level of risk to the community and the need for protection, relevant factors include:
the seriousness and nature of the crime;
the risk of recidivism, and
the likelihood that deportation would prevent or discourage similar offences by other persons.
7. The deportation order was based on the conviction on 13 November 1998 for robbery in company.
8. Paragraph 11 of the General Direction states that, inter alia, assault or any other form of violence against persons, and any other crimes involving violence or the threat of violence, are considered by the Government to be of a very serious nature.
9. The seriousness of the offence committed by the applicant can be seen in the comments of the sentencing Judge, Judge Morgan, at pages 73 to 77 in the Tribunal documents. Judge Morgan notes that the crime carries a maximum sentence of 20 years penal servitude and that "it is an extremely serious crime in the criminal calendar". The essential factual findings made by the sentencing judge in imposing the sentence, and which, with respect, must be accepted by this Tribunal (Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197) included the following:
[The victim] at around 8.30 in the evening went to the Commonwealth Bank at Bankstown to a teller machine to withdraw some money. He was dining with friends, he went to get some money for that purpose and when he was at the machine he saw two young Asian men around the other machines. He did not take a great deal of notice but he got his $50 out of the machine and left and started to walk down a laneway going towards a carpark. He saw as he walked down that laneway two other Asian men coming towards him. They were not the two that he had seen at the teller machines. One of them, as they approached, asked him for the time and then he was grabbed by those two men. He then saw the other two men who had been at the teller machines, coming towards him and all of the men then attacked him and he was pushed onto the ground. He was hit on the face by the prisoner and his wallet was taken and his gold chain was snatched from around his neck. He was bruised in the right eye and he reported the matter to the police. The prisoner was later arrested in relation to the matter and when spoken to by the police he denied his involvement and denied even being there.
……..
The courts have said time and time again that people who attack and rob people must expect a gaol sentence, and this one was a particularly cowardly act by five young men against an older man, on his own and it was obviously planned. It was obvious that the two men, one of whom was the prisoner, at the ATM machine, were simply waiting for a victim to come along: and it was unfortunate for [the victim] that he happened to be that person.The courts have said, and the community expects, that people are entitled to go about their business, they are entitled to go to teller machines and withdraw money without expecting or fearing attacks by louts coming along and knocking them over and stealing their money and as I say the community expects that the courts will act appropriately.
10. The sentencing Judge sentenced the Applicant to four years imprisonment, with a non-parole period of two years, the normal one-third ratio for the additional term being altered due to his incarceration being in segregation at that time, his cultural background and his youth.
11. The Respondent contends that the Applicant presents as an unacceptable risk of recidivism, having consideration of his previous general conduct and total criminal history. He has a significant criminal history, and continues to downplay the circumstances of the robbery in company. The Parole Board refused his application for parole in May 2000, for reasons including that he was "unable to adapt to normal lawful community life; his risk of re-offending, inappropriate in the public interest". The Respondent notes that at the time that the Parole Board was considering the applicant's parole application, there was an outstanding murder charge against the applicant which has subsequently been dismissed.
12. It is likely that deportation of the Applicant may inhibit the commission of similar offences by other persons.
13. The Applicant's offending history is such that the Australian community would expect that he would be deported from Australia.
Best interests of the Child
14. The Applicant has no children.
Other considerations
15. The General Direction provides that other considerations that may be relevant include the degree of hardship that may be suffered by the deportee and/ or to any Australian citizens or permanent residents.
16. The Applicant may suffer some hardship if he were returned to Vietnam, as he left that country at a young age. Although his natural mother may still reside in Vietnam, the Applicant claimed to have had no contact with her for some considerable time. He has family in Australia.
17. The Applicant' s family in Australia may suffer some hardship if he is deported.
18. The Respondent contends that the degree of hardship that may be suffered by the Applicant and his family if he is deported is outweighed by the primary considerations involving the expectations of the Australian community. Therefore, the decision to order the deportation of the Applicant is the correct and preferable decision in the circumstances.
(b) The pre-sentence report, dated 13 November 1998, in relation to the 'robbery in company' offence, and referred to in paragraph 2, reads relevantly as follows:
SIGNIFICANT SOCIAL FACTORS/FAMILY SITUATION
Mr Nguyen migrated to Australia in 1991. He said he left Vietnam approximately two years earlier, travelling en route through Hong Kong. Mr Nguyen has extended family in Australia including his father, step-mother and two younger step-siblings. The offender has had no contact with his mother, who lives in Vietnam, for approximately ten years.
Since arriving in Australia Mr Nguyen has lived primarily with his aunt. He has also spent periods of time in various detention facilities. Although Mr Nguyen said that he retains contact with relatives, he rarely receives visits in gaol. A telephone interview conducted with a family member provided minimal background information because of language difficulties.EDUCATION AND EMPLOYMENT
The offender said he left school at fourteen years of age. Subsequently he worked in a takeaway food outlet owned by a relative. Other positions have included employment as a waiter and work in a printing outlet. Mr Nguyen's work history consists primarily of short-term unskilled positions.FACTORS RELATED TO OFFENDING
Attitude: Mr Nguyen said he was intoxicated at the time of the offence. He stated he was simply aiding a friend who was involved in a fight, and claims he was unaware a robbery had occurred during the fracas.
It is noteworthy that this offence occurred whilst Mr Nguyen was participating in the intensive programs unit.
Alcohol and Other Drugs: Mr Nguyen acknowledges daily cannabis use. He admits to a brief period of experimental use of rohypnol in his mid-teens and states he has used no other drugs.
At the age of fourteen Mr Nguyen said he drank alcohol daily. He claims to have significantly reduced his alcohol consumption since being released from juvenile detention facilities. Mr Nguyen maintains that prior to his current incarceration he was drinking alcohol socially, once or twice a week. Departmental records and conversations with alcohol and drug staff suggests the offender does not have any addiction or substance abuse problems.
ADDITIONAL FACTORS
Performance in custody: Until recently Mr Nguyen was housed in segregation at Lithgow Correctional Centre. Custodial staff indicated he is very quiet and said his primary activity is exercising. As a security classification inmate he is was (sic) in cells for approximately twenty hours each day.
Program Participation: Since arriving in Lithgow Mr Nguyen has been participating in individual drug and alcohol counselling as well as group programs. His counsellor suggested that Mr Nguyen's drug use is recreational rather than habitual and is subsidiary to his offences. His participation in drug and alcohol programs stems from policy decisions regarding his conviction history rather than the need to address drug or alcohol problems per se.
Education: The offender has been learning English whilst incarcerated and is participating in an art course. Education staff commented that he is a committed student who is conscientious about completing course work and assignments.
SUMMARY AND SENTENCING DETAILS
Mr Nguyen has had a disruptive and unstable lifestyle. Since leaving school at a young age, he has been in frequent conflict with the law. Nonetheless, his extended family have remained supportive and assisted at various times with employment and accommodation. Custodial reports suggest he is using his time in prison constructively. Mr Nguyen's criminal history is of concern, and to remain law abiding he will need to effect significant lifestyle changes.
Mr Nguyen's criminal history, coupled with is (sic) previous response to supervision by this service, suggests he is unsuitable for community sentencing options.
(c) Although in respect of the relevant conviction, the Respondent's Statement of Facts and Contentions contains brief extracts from the sentencing remarks (T pages 73-77) of the sentencing judge at the robbery trial, Judge Morgan, those remarks are of such relevance that they are set out in full as follows:
Mr Nguyen stood trial at Liverpool on 31 August 1998. He pleaded not guilty to the charge that on 15 June 1996 at Bankstown being in company with other persons robbed Seneal Gadgel of a wallet containing cash and personal terms and a gold chain the property of Mr Gadgel. The trial was concluded on 2 September 1998 and the jury found him guilty of that charge. This charge is preferred under s97 of the Crimes Act and it carries a maximum sentence of 20 years penal servitude. It is an extremely serious crime in the criminal calendar.
The short facts are that Mr Gadgel at around 8.30 in the evening went to the Commonwealth Bank at Bankstown to a teller machine to withdraw some money. He was dining with friends, he went to get some money for that purpose and when he was at the machine he saw two young Asian men around the other machines. He did not take a great deal of notice but he got his $50 out of the machine and left and started to walk down a laneway going towards a carpark. He saw as he walked down that laneway two other Asian men coming towards him. They were not the two that he had seen at the teller machines. One of them, as they approached, asked him for the time and then he was grabbed by those two men. He then saw the other two men who had been at the teller machines coming towards him and all of the men then attacked him and he was pushed onto the ground. He was hit on the face by the prisoner and his wallet was taken and his gold chain was snatched from around his neck. He was bruised in the right eye and he reported the matter to the police. The prisoner was later arrested in relation to the matter and when spoken to by the police he denied his involvement and denied even being there. However, as I said the jury found him guilty and my recollection is that they were not out considering their verdict for very long. It was really quite a strong case against the prisoner.
He is a young Vietnamese man who was born on 1 February 1978. He is now 20 years of age. He migrated to Australia in 1991 having left Vietnam some two years prior to that. He does have family in Australia although he has not had very much contact with them recently. His work history since he left school at the age of 14 has been mainly in short-term unskilled positions.
In the pre-sentence report that has been tendered in this matter the prisoner told the probation officer that at the time of the offence he was intoxicated and he still maintains, as his defence was, that he was simply aiding a friend who he thought was involved in a fight with a person in the alley and he was going to his assistance and he was unaware that a robbery had taken place. Maintaining that attitude does not entitle him to any leniency for contrition or remorse and, of course, he did not plead guilty at the first opportunity, not that that is a matter which would lengthen any sentence that is imposed but it simply relates to the fact that there is no leniency to be given to him.
As I said earlier today in another matter, the courts have said time and time again that people who attack and rob people must expect a gaol sentence, and this one was a particularly cowardly act by five young men against an older man, on his own and it was obviously planned. It was obvious that the two men, one of whom was the prisoner, at the ATM machine, were simply waiting for a victim to come along and it was unfortunate for Mr Gadgel that he happened to be that person.
The courts have said, and the community expects, that people are entitled to go about their business, they are entitled to go to teller machines and withdraw money without expecting or fearing attacks by louts coming along and knocking them over and stealing their money and as I say the community expects that the courts will act appropriately.
I have been informed by Mr Hoare, who appeared for the prisoner both in the trial and on sentence, that he is at the moment in gaol but in a segregated area, not because of any crimes that he has committed or any misconduct in gaol, but because of the problems of retribution from another group in the gaol system and apparently the only way in which he can be protected is by placing him in the segregation area which really means that for 20 hours of the day he spends in a cell and the remaining time when he is allowed out or able to come out he is in isolation because of the necessity to keep him segregated and protected from this other group. It really sounds quite appalling for him to have to undergo that type of incarceration. Being in gaol at all would be very unpleasant but to have to serve any sentence that way simply compounds it.
The prisoner has matters on his record and, indeed, up until June of this year he was serving a sentence in relation to being in possession of a firearm and escaping from custody, the minimum term expired on 7 June of this year, and since that time he has been in custody. I have been informed by Mr Hoare that although he knew he could apply for parole for the additional term that was still to be served, some eight months, because of the proximity of this trial he informed the person who came from the Probation Service that he could not see any use in making application for parole and apparently indicated that he would expect if he was found guilty and had to serve a sentence that that time in custody would be taken into account. I will do that in view of his circumstances.
As I have said this is a very serious matter which carries a maximum penalty of 20 years, but I intend in view of the circumstances in which he is presently incarcerated and because of his cultural background and youth, although he has spent time in custody prior to this offence, to find special circumstances. The Crown concedes these are matters which can be taken into account in deciding special circumstances, which will mean, of course, the normal one third ratio will be altered.
So, in this matter on the charge of robbery in company upon which the jury have found you guilty, you are convicted. The total term of imprisonment will be one of four years, that period of penal servitude is to consist of a minimum term of two years which is to commence on 7 June 1998 and will expire on 6 June 2000, together with an additional term of 2 years to date from 7 June 2000. The prisoner will be released on parole on 6 June 2000 and will be then subject to supervision in accordance with the Regulations under the Sentencing Act. The additional term exceeds one-third of the minimum term because of the special circumstances which I have already enumerated.
(d) T10, (pages 37-39), of the T Documents, is an "Immigration Report" dated 3 April 2000, prepared by Mr Paul Maggs, Probation and Parole Officer at Goulburn; it reads, relevantly, as follows:
SIGNIFICANT SOCIAL BACKGROUNG
Mr Nguyen migrated to Australia in 1991 .He said that be left Vietnam approximately two years earlier, travelling en route through Hong Kong. Mr Nguyen has extended family in Australia including his father, step-mother and two younger step-siblings. He has had no contact with his mother, who lives in Vietnam, for approximately twelve years.
Since Arriving in Australia Mr Nguyen has lived primarily with an aunt. He has also spent periods of time in various detention facilities. He has received visits from his father, aunt, and grandparents over the last two or more years.
ATTITUDE TO OFFENDING
Mr Nguyen's explanation of his participation in the offence is that he was aiding a friend who was involved in a fight. There were five attackers against one victim. He stated that he never saw a wallet or chain. He admitted that he was there and that he did wrong in kicking the victim. The others were people with whom he usually met after work at the station and had coffee or shared beer. They were not close friends and he had never been to their homes. Mr Nguyen insisted that at no stage did he know that the others were robbing the victim. He explained that it is part of Asian culture to come to the aid of friends.
He agreed that he bad been drinking a few beers but that he was not "drunk", but stated that a few beers gets him "tipsy". He concluded that he does not consider his drinking affected in any way his participation in the offence.
Mr Nguyen stated that (sic) had been checking his account balance at the ATM to see if his wage had been entered. He maintained that he had no reason to rob anyone because he had employment and had money. In fact his account held only $5.44 at the time of the offence (verified by Police).
CORRECTIONAL CASE HISTORY
Mr Nguyen has been in custody since 7 October 1997 on a previous sentence of "Possess Loaded Firearm in a Public Place" (Fairfield LC 5 November 1997). He did not take Court based Parole because of the charge of the Robbery in Company" was pending.
Mr. Nguyen has completed two drug courses: Harm Reduction (Certificate dated 5 August 1998) and Relapse Prevention (Certificate dated 29 October 1998). He has attended education doing Computer Studies regularly, but since being transferred to the high security unit his access has been curtailed. He has also studied Maths and English when at Lithgow CC. These were verified by an Education Officer at Goulburn.
Mr Nguyen has currently E2 classification because of an escape from Police in 1997. He is currently in High Security because of a Murder charge, which allegedly as committed in Goulburn Gaol on 24 August 1998. Apparently he is one of seven that have been charged over the murder. He is due to appear at Goulburn Local Court again on 12 April 2000 for mention only. No plea has been entered yet. Bail has not been applied for. Mr Nguyen stated that if he were to be granted parole he would apply for bail.
Mr Nguyen is currently unemployed because of his being in segregation. He has about 12 months employment at Corcover between November 1998 and December 1999. Mr Nguyen's general behaviour has been satisfactory.
POST RELEASE PLANS
Mr Nguyen will reside with his uncle and aunt, Tinh Nguyen and Kim Au, their three children and his grandparents at 210 William St Granville (phone: 02.98972646), where he has lived previously. He appears to have a supportive family.
Mr Nguyen stated that upon release he will endeavour to find employment or will attend TAFE to do a Hospitality course.
SUMMARY
Mr Nguyen migrated to Australia from Vietnam, when 13 years of age. His parents are separated. He has been brought up in Australia mainly by his relatives. His family is still supportive of him and have visited him whilst in custody and be intends to return to live with them if released to parole. His mother still lives in Vietnam. Mr Nguyen admits to marijuana use and some experimental use with rohypnol. He also admits that he has drunk alcohol but not to problem proportions. He maintains that he has no drug and alcohol problem as such. Mr Nguyen denies his full participation in the offence in that he admits to "aiding" his friends but not knowing of their intention to rob the victim. He was the only one who was actually charged and sentenced for the offence. It would appear that his choice of associates was poor as well as his sense of loyalty to such associates.
Mr Nguyen is still under a three years supervised Recognizance (sic) for "maliciously destroy Property" x 3 (Parramatta LC, 20 October 1991), which expires on 19 October 2000.
Apart from the alleged murder charge. Mr Nguyen would appear to have performed satisfactorily whilst in custody in regards to conduct and pursuing some educational and self development courses. He has spend (sic) all of his time in the main gaol because of his escape from the Police in 1997 and most of this time has been spent in administrative segregation.
The NSW Parole Board considered his case on 30 March 2000. The Board's decision is Intention to Refuse Parole. A Review date has been set for 26 May 2000. Reason: "Unable to adapt to normal lawful community life; risk of re-offending; inappropriate in the public interest."
In oral evidence before the Tribunal, the Applicant (and members of his family) said that after leaving Vietnam they spent about five years in Hong Kong before their arrival in Australia in 1991. This period was also referred to as the relevant period by the Applicant in an interview (T page 34). By contrast, the pre-sentence report and the sentencing remarks of Judge Morgan refer to a period of 2 years in Hong Kong. The Tribunal does not consider that anything turns on this discrepancy and inclines to the view that the period in question was, in all probability, five years.
Exhibit R1 is an "Update Immigration Report", also by Mr Maggs, signed and dated 8 February 2001; it noted in particular that the murder charge against the Applicant and others was dismissed on 13 October 2000; Exhibit R1 reads, relevantly, as follows:
PROGRESS IN CUSTODY
On 13 October 2000 at Goulburn Local Court, the charge of "murder" against Mr Nguyen (and others) was dismissed.
Mr Nguyen has continued to do English lessons. He has been given work as a sweeper in the wing, He has had no misconduct charges and his behaviour is considered to be satisfactory.
Mr Nguyen remains an E2 because of his attempted escape from the Police when arrested in 1997.
Mr Nguyen has had visits whilst at Goulburn mainly from his cousins.POST RELEASE PLANS
Mr Nguyen's post release remains as previously, namely, to live with his uncle and aunty, their children and his grandparents, at 210 William Street, Granville (phone 02 9897 2646). These plans were verified again recently by phone.ASSESSMENT
Mr Nguyen has continued his satisfactory behaviour. Unfortunately, he still remains a E2 classified inmate and therefore will be limited in his access to low security and programs. The charge of "murder" has been dismissed.
The NSW Parole Board will be considering his Parole on 20 February 2001.
Mr Nguyen persists in his explanation of his involvement in the offence, namely, that he joined in the assault on the victim, but had no idea that the group had initiated the assault in order to rob the victim.
Mr Nguyen has good family support in the Granville area where his uncle and aunty, their children and his grandparents live. His father and step-mother and their children live nearby. He stated that he has never really known his mother, who lives in Vietnam and his mother cared for him only for a short time before handing him over to his grandparents. If he is returned to Vietnam, he will know no-one and the culture will be foreign to him in that he came to Australia when young.
M Nguyen pointed out that the Victorian Criminal Record under the name of Van Nguyen does not belong to him. He pointed out that the Date of Birth is different and that he was in gaol in NSW when he was allegedly in court in Victoria.
(d) The Applicant's criminal history appears at pages 78-80 of the T Documents; it reads, relevantly, as follows:-
COURT DATE COURT NAME OFFENCE CHARGE DATE SENTENCE
14/11/1994 17/03/1995 27/02/1995 05/11/1997 09/03/1998 20/10/1997 13/11/1998 Lidcombe Children's Court 1.POSSESS PROH DRUG Lidcombe Children's Court 1. POSSESS PROH DRUG 2. GIC Bidura Children's Court 1. SUPPLY PROH DRUG 2. SUPPLY PROH DRUG Fairfield Local Court POSSESS UNAUTHORISED FIREARM – NOT PROHIBITED FIREARM/PISTOL ESCAPE POLICE CUSTODY POSSESS LOADED FIREARM PUBLIC PLACE – T2 PARRAMATA DISTRICT COURT POSSESS UNAUTHORISED FIREARM – NOT PROHIBITED FIREARM/PISTOL ESCAPE POLICE CUSTODY POSSESS LOADED FIREARM PUBLIC PLACE – T2 PARRAMATA LOCAL COURT MALICIOUS DAMAGE MALICIOUS DAMAGE MALICIOUS DAMAGE PARRAMATTA DISTRICT COURT ROBBERY IN COMPANY 20/10/1994 1. FD $100 22/10/1994 1. Fd $300 CC $46 2. Fd $200 CC $46 19/12/1994 1. CONTROL ORDER 18 MTHS FROM 19.12.94 TO 18.06.96 ADD TERM 6 MTHS 2. CONTROL ORDER 12 MTHS FROM 19.12.94 07/10/1997 FIXED TERM: 6 MTHS COMMENCING 07/10/1997 (APPEALED) FIXED TERM: 6 MONTHS COMMENCING 07/10/1997 (APPEALED) MINIMUM TERM: 12 MONTHS COMMENCING 07/10/1997 ADDITIONAL TERM: 4 MONTHS (APPEALED) 07/10/1997 APPEALED AGAINST CONVICTION CONVICTION CONFIRMED APPEALED AGAINST CONVICTION CONVICTION CONFIRMED APPEALED AGAINST CONVICTION CONVICTION CONFIRMED LIEUMINIMUM TERM: 8 MONTHS COMMENCING 07/10/97 CONCLUDING 06/06/1998 ADDITIONAL TERM WITH CONDITIONS: 8 MONTHS CONCLUDING 06/02/1999 RELEASE SUBJECT TO SUPV 07/10/1997 RECOG S558: $500 3 YEARS SUPV NSW PROB SERVICE COMPENSATION $160 RECOG S558: $500 3 YEARS SUPV NSW PROB SERVICE COMPENSATION: $773 COMPENSATION : $30 VICTIIMS COMPENSATION LEVY RECOG S558: $500 3 YEARS SUPV NSW PROB SERVICE COMPENSATION: $125 07/10/1997 INDICTED FOR: MINIMUM TERM: 2 YEARS ADDITIONAL TERM 2 YEARS
The Applicant was, as set out previously, self-represented. In the circumstances and with the consent of the Applicant the proceedings began with a brief address by Ms Hanstein setting out the Respondent's case, and thus the case with which the Applicant would have to deal.
The names of the close relatives who gave oral evidence are in some respects, and at least to people in Australia, somewhat similar (apart from the common surname); accordingly:-
·The term "father" refers to Van Lien Nguyen, father of the Applicant, who gave evidence in Vietnamese and with the assistance of an interpreter in that language.
·"step-mother" refers to Thi Quy Nguyen, who is the Applicant's step-mother, who also gave evidence in Vietnamese, assisted by an interpreter in that language.
·"grandfather" refers to Tien Bao Nguyen, grandfather of the Applicant, who also gave evidence in Vietnamese, assisted by an interpreter in that language.
·"grandmother" refers to Thi Huu Nguyen, grandmother of the Applicant, who also gave evidence in Vietnamese, assisted by an interpreter in that language.
·"uncle" refers to Van Thin Nguyen, uncle of the Applicant; he gave evidence in a mixture of English and Vietnamese, and on occasions needed the assistance of the Vietnamese interpreter.
·"cousin" refers to The Cuong Vu, cousin of the Applicant and son of the aunt, who gave evidence in English.
·"aunt" refers to Thi Huong Nguyen, aunt of the Applicant, who in the result did not give oral evidence, but who is referred to again in these Reasons in relation to certain malicious damage convictions.
The Applicant then gave evidence; his evidence can be summarised as follows:
(a) The Applicant was born in 1978. His father and his natural mother were divorced in Vietnam when he was very young, and he has since had no contact with his natural mother.
(b) The Applicant came to Australia in June 1991. He stated that he originally left Vietnam in 1985 with his grandparents in order to go to Hong Kong. (In an interview on 22 March 2000, the Applicant stated that he fled to Vietnam with his father, stepmother and grandparents [T9, page 36]). Some five years were spent in Hong Kong, during which time the Applicant learnt some Chinese. His evidence was that in Hong Kong he was largely cared for by his grandparents.
(c) The Applicant came to Australia when he was 13, together with his father, his step-mother and their two children (his stepbrother and stepsister). His uncle and his aunt were already in Australia; his grandparents came to Australia a short while later. For a period of a few weeks, the Applicant stayed in rooms occupied by his family as a whole, and including his father and step-mother (loosely referred to as his "parents") and their children. When the families obtained separate accommodation, the Applicant went to live with his grandparents and his uncle and his uncle's wife, and stayed with them for a period. He did not stay with his parents; his evidence was (as set out previously) that while in Hong Kong he had been largely cared for by his grandparents.
(d) In the middle of 1992, the Applicant moved in with his aunt, her husband and their children.
(e) The Applicant completed year 8 at Dulwich Hill High School in 1993 having previously attended a different school.
(f) Towards the end of 1993 he obtained part-time work cleaning the grills at a take-away establishment. That job ended in January 1994, when it was apparently required for the owner's daughter. He left school at the end of 1993; he said that he had difficulty balancing study and work commitments.
(g) In March 1994 the Applicant obtained work with a truck driver, helping him to move furniture and clothes. That job didn't "work out" and he left after two months. He then drew unemployment benefits for about nine months, and until the end of 1994.
(h) The Applicant had left his aunt's home in 1993 in order to live with a friend in Lakemba.
The Applicant said that at the end of 1994 he was convicted in the juvenile court of supplying heroin; that conviction resulted in a sentence, so he said, of three years. It seems likely that the Applicant was in fact referring to his conviction in February 1995 of two counts of supplying a prohibited drug (in fact heroin) which resulted in a control order for 18 months, with additional terms of 6 months and 12 months respectively. These convictions, which occurred in February 1995, should be distinguished from a conviction for possessing a prohibited drug in November 1994, and for which he was fined $100. They should also be distinguished from convictions in March 1995 for possessing prohibited drugs and having goods in custody, and for which he was fined $300 and $200 respectively.
(j) After about 15 months in a juvenile detention centre the Applicant was released; this occurred in or about March 1996. He went to live with his aunt and her family; he obtained work as a printer at Kwik Kopy Printing, having (while in the juvenile detention centre) attended a printing course.
(k) The job at Kwik Kopy Printing lasted for about six months and after which time the Applicant gave it up. In July or August 1996 he left his aunt's home and went to live with two friends. He said that they stayed at home and drank and gambled, he said that he was able, so he said, to gamble because he had some savings from the period when he had worked.
(l) At the beginning of 1997 the Applicant went to Springville in Melbourne in order to join a girlfriend whom he had met some two months previously. He stayed with a family who owned sewing machines and did work for factories. His work for them involved over-locking. The relevant conviction, although it occurred in 1998, related to an occurrence in June 1996, and at a time when the Applicant was under an obligation to report to the authorities. He did report for a time, but not for the whole of the period in respect of which he was obliged to do so.
(m) The Applicant went to Melbourne at a time when he had an obligation to attend court to answer the robbery change. He nevertheless went to Melbourne and did not attend court on the date on which he was obliged to appear. An explanation that he forgot the date was not convincing, more particularly having regard to the fact that he had appeared at hearings previously.
(n) In July 1997, the Applicant returned to Sydney after breaking up with his girlfriend, and again stayed with friends. Soon afterwards, the Applicant had a fight with his aunt at her house; he recollected none of the reasons why or how the fight occurred. During this incident, he broke the windows in his aunt's neighbours' houses, as a result of which he was convicted (in October 1997) of three counts of malicious damage.
(o) In November 1997 the Applicant was convicted of two firearms charges, (one for possession of an unlicensed firearm and the other for possessing a loaded firearm in a public place), and also escaping from custody. The Applicant said that he ran from the police because of the outstanding robbery charge. He denied that the firearm (which was loaded) had anything to do with him, and claimed in fact that he was "framed" by the police on both of the two firearm charges. No such claim was made in respect of the "escaping from custody" conviction. The Applicant appealed against the convictions (and sentences); the convictions were confirmed, but the sentences were reduced.
(p) Various prison offences resulted in certain penalties in June 1998.
(q) In August 1998 the Applicant entered a plea of not guilty to the "robbery in company" charge. He was subsequently, in November 1998, convicted and sentenced to four years imprisonment, consisting of a minimum of two years, together with an additional term of two years.
(r) In his evidence before the Tribunal the Applicant maintained throughout that he was unfairly convicted of the robbery conviction. He said that he had gone to the aid of a friend who was involved in a fight and that he had no knowledge whatsoever of any intention to rob; he contended that he should therefore have been convicted only of assault.
(s) It was made clear to the Applicant, having regard to the decision in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, that the Tribunal must accept the fact of convictions and relevant sentencing remarks, and that the Tribunal does not have the power to go behind those convictions or sentences. The Applicant nevertheless persisted with his claim, that in respect of both firearm charges and the robbery charge he had been improperly convicted. Particularly as regards the robbery charge the Tribunal notes the remarks of Judge Morgan; this was, as those remarks indicate, a particularly unpleasant robbery.
(t) The Applicant gave evidence as to his frequent use of alcohol and marijuana. He referred also to his taking of Rohypnol; Rohypnol is a powerful drug (available only on prescription) and used generally as a remedy against insomnia. However it does, according to the Applicant, have the opposite effect when taken to excess. It was indeed, so the Applicant said, Rohypnol which caused the fight with his aunt, and which led to his malicious damage convictions.
(u) The Applicant has, while in prison, taken a computer course, although, according to the Applicant's evidence, not one which taught him very much. He has also had some art and English lessons. In addition he has taken two drug courses; (Harm Reduction, and Alcohol and Other Drug Relapse Prevention)
(a) To summarise, the Applicant came to Australia in 1991; from 1994 until 1998 he was convicted of a number of serious crimes. From an early stage he displayed a contempt and disregard for the law; I refer in particular in this context to his failure to honour his reporting obligations and his failure to appear in respect of the robbery charge. The convictions in respect of robbery, selling heroin, the firearms and escaping from custody must be classed as serious, and, in some cases, very serious. The Applicant attributed it all to bad company and the influence of friends.
(b) There were moreover periods and sometimes extended periods when he had little or no contact with his family; although it must be said that they have, in general terms, been supportive, especially during the substantial periods of time which the Applicant has spent in detention of one form or another. There was some considerable discrepancy as to the extent to which the family members have visited the Applicant while incarcerated. The Applicant said that when in Sydney he would have visits on most weekends; but this has not been so since he was moved out of Sydney. In general terms his cousin is, for the most part, his only visitor. The Applicant said that he had not seen many of his relatives since April 2000. He also said that he does not telephone his father or receive visits from him. (This evidence does not accord with that of the family who spoke of more regular visits.)(a) Oral evidence was given by his father and his step-mother. They came to Australia in 1991; neither had ever worked in Australia and both have ever since their arrival here, drawn social security. There was no explanation as to why this should be so. The Applicant's father appeared to be fit and youthful in appearance. The Applicant's father in particular testified as to why his contact with the Applicant is and has been so infrequent.
(b) Oral evidence was also given by each of his grandparents. They are both old, although in good health. They live on the old age pension, which has apparently been sufficient to enable them to make a number of (extended) trips to Vietnam, and recently a trip to Canada. The Applicant's grandmother said that she had been on all of the trips to Vietnam. It was not clear to me that she also went to Canada.
(c) The Applicant's uncle gave evidence, as set out previously, in part in English and in part in Vietnamese. He has, for the past few weeks, had a small dress-making business which he runs together with his wife from the garage in their home. Before that he had casual jobs. He too has visited Vietnam on a number of occasions.
(d) The Applicant's cousin is 19; he is a son of the Applicant's aunt. He works for Latrobe Property Research, and has done so (as a merchandiser) for a period of about four months. He left school in 1999, and then took a year off, during which time he attended a TAFE course on a part time basis. The job with Latrobe Property Research is his fourth job, which indicates that the others must have been of short duration. He too has visited Vietnam and on more than one occasion.
(e) The Applicant had intended that his aunt would give evidence. However she could not do so because she had taken a child to an appointment with a dentist. That appointment was for 1.00pm of 14 February 2000. At 12.40pm, on that day, I adjourned the hearing until 2.30pm to enable her to appear. However she sent a message that she would not be able to do so. The Applicant agreed that it was unlikely that she could give any evidence, except perhaps as regards the fight which led to the malicious damage convictions, which would add to that of the other family members.
The evidence of the family members who gave oral evidence can be summarised thus:-
(a) The family as a whole is supportive of the Applicant. They consider that his convictions arose from the fact that he had lived away from his family, and with friends who were a bad influence on him. They have repeatedly, so they said, encouraged him to mend his ways, but without success.
(b) Some family members mentioned the fact that the Applicant's Vietnamese is now faulty. However, he is sufficiently fluent in Vietnamese to enable him to converse with some members of his family in that language, and particularly those who have little or no English.
(c) Mention was made of the fact that, although there are a number of family members still in Vietnam, the Applicant does not know them and there is doubt as to the level of support which could be expected from them. The family members in question are siblings of his uncle and his aunt, and their respective families.
(d) Many of the family members are now Australian citizens, even though in some cases they were uncertain about when citizenship had been obtained. Most have travelled to Vietnam, and in some cases on more than one occasion and for extended periods. When asked whether they would visit the Applicant if he had to return to Vietnam, the answer was generally that this would depend on the availability of funds.
(e) All of the family members said that they would be very sad and upset if the Applicant were to be obliged to return to Vietnam.
The Applicant's prospects, were he to be released and allowed to remain in Australia, are uncertain. He spoke of getting a printing job, or attending a hospitality course at a TAFE. Some of his family spoke of (vague) possibilities of employment. For example it was thought that he might obtain a job with Latrobe Property Research where his cousin works. His uncle did not think that there would be room for him in his small home-based business. The evidence indicated that the Applicant has never held any job for more than a few months. That factor, when taken in conjunction with his substantial criminal record, must render his prospects of obtaining employment dubious.
It is perhaps relevant to mention that the Applicant did not submit statement in respect of the witnesses called by him. Ms Hanstein did not (properly in my view) object. Moreover, after calling each of them he simply left it to Ms Hanstein to ask them questions, and very fairly she asked questions designed to draw out evidence which might be in his favour. One of the family members was at first reluctant to answer her questions.
This brings me to consider General Direction – Criminal Deportation – Number 9 (referred to in these Reasons as "Direction 9") which is binding on me in accordance with section 499 of the Migration Act 1958 ("the Act"). Clause references in this paragraph should be construed as references to clauses in Direction 9.
(a) Clause 6 states that the two primary considerations are:-
·The Expectations of the Australian Community;
·The interests of any child; (this is not a relevant factor in this case).
(b) Clause 8 provides that there are two aspects in respect of community expectations:-
· The expectation that the community will be protected and not put at risk; and
· The expectation that non citizens who are convicted of crimes which are abhorrent to the Australian community will be removed from Australia
(c) Clause 9 sets out that the Australian community expects that it be protected against crime. It goes on to say that "this is of particular importance when the offences in question are in relation to drugs and crimes of violence". Clause 10 then specifies that the factors which are relevant to the assessment of the level of risk to the community and the need for its protection are:
·The seriousness and nature of the crime;
·The risk of recidivism; and
·The likelihood that deportation would prevent or discourage similar offences by other persons.
(d) Clause 11 then sets out the types of offences which are considered to be very serious. Offences involving heroin and the supply of drugs are included in this category. So too are offences involving violence or the threat of violence.
(e) Clauses 7 and 21 require me to consider, (although not as primary considerations, and thus having less weight):
The degree of hardship which may be suffered by the potential deportee; and
The degree of hardship to Australian citizens or permanent residents, and including the potential deportee's family.
(g) In this particular matter it is of relevance to note that the Applicant did not at any time in the hearing express any remorse whatsoever for his crimes. On the contrary, and as regard to the robbery and firearm convictions, he persistently stated that he was improperly convicted. His explanations as to his failure to report and to attend trial for the robbery charge were not credible.
(h) Exhibit R1 indicates that the Applicant has "continued his satisfactory behaviour"; it goes on to say though that he "remains limited as regards access to low security programs". This is so, in consequence of the fact that one of his convictions was for escaping from custody.
The Applicant's crimes were undoubtedly in some instances in the very serious category. And the degree to which he has repeatedly committed crimes must have the effect that the risk of recidivism is only too real. This is a case in which, in my view, the Australian community would expect that the Applicant be deported.
(j) There will undoubtedly be some degree of hardship to the Applicant, and to members of his family if the Applicant is forced to return to Vietnam. But it is, as Ms Hanstein contended, and in relation to members of his family, emotional hardship, and not economic hardship. It must be remembered, moreover, that his contact with his family has been intermittent in the sense that there have been stretches of time when he has had limited contact with his family. It would seem that while incarcerated some family members might visit or phone him, but only on a periodical basis, and in some cases (apparently) infrequently. Some of the Applicant's family members expressed fears as to how he will fare in Vietnam; they also expressed doubts as to whether they would have the means with which to pay for visits to see him. However it is to be noted that many of them have made trips (and in some cases extended trips) to Vietnam in the past, and may do so again in the future.
(k) The evidence before the Tribunal was such that it does not seem that the Applicant plays a central role within the family structure, either economically or emotionally. The Applicant's behaviour has been such that the hardship factor, which does undoubtedly exist, does not outweigh the primary considerations.
Direction 9 came into force on 21 December 1998. On the second hearing day, and just before the luncheon adjournment, I handed copies of certain decisions (found for me by my Associate) to each of Ms Hanstein and the Applicant, in case they wished to address me as to their significance or relevance. In fact neither did so, and it must be acknowledged that, having regard to the fact that they pre-date Direction 9, they must of necessity be treated as, at best, merely persuasive. Nevertheless, and in the interests of completeness, I intend to refer to three of them.
(a) I refer in the first instance to Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 554, a decision of Deputy President Bannon QC. The Deputy President was concerned with a youthful applicant who had a bad criminal record. Deputy President Bannon said, at page 547:"I do not disguise my considerable anxiety that the Applicant may re-offend. I fully agree with the comments in par 24 of the Deportation Submission made to the Respondent concerning the Applicant, contained T35 at p86, setting out the factors in favour of deportation. I have reminded myself that deportation is not a matter of reward or punishment but that the crucial question is the best interests of the Australian Community…… when assessing what is in the best interests of Australia one must of course include the interests of the Applicant's Australian naturalised father, his mother and siblings.
The view I have formed is that the Applicant is a problem. He has a very bad criminal record and as such there is a risk that he may offend again. However, I have come to the reluctant conclusion that the Applicant has become Australia's problem…….
Now that the Applicant is twenty-five years old, his criminal record in Australia does not, in my opinion, justify sending him back to a country which is now alien to him and his family.
It appears to me that if Australia is prepared to accept migrants with children of tender years, it is not reasonable to deport to foreign lands the children of an Australian citizen simply because that child is a criminal and was born in a foreign country and is not naturalised. It is neither compassionate nor in the best interests of Australia to deport children arriving as migrants because of later crimes. If the Applicant seriously offends again it is to be hoped that not withstanding parole boards and non-parole periods be (sic) will be placed in prison for a long time without compunction and without any early release.
(b) In Dung Chi Dang v Minister for Immigration and Multicultural Affairs, Deputy President Forrest said, at pages 14 and 15:
The applicant's circumstances as outlined earlier are that he arrived in Australia at 13 years of age, the product of a disrupted upbringing in a family fragmented by war. I have little difficulty in accepting the evidence of the applicant's mother of the difficulties she had to face in earning a living and raising her family in a high rise housing estate in an unfamiliar culture. I accept that deportation would cause distress to the applicant's family and fiance who have made their home in Australia and are now citizens of this country.
I also accept that the applicant would suffer hardship if he were to be deported back to a country he left as an adolescent, when his family are settled in Australia and he would be permanently barred from re-entry. Considerations of hardship to the applicant and his family must be counterbalanced by the anguish and distress he has undoubtedly caused to the Australian community by his criminal behaviour. I have found this is a difficult case and the competing considerations are finely balanced.
It seems clear that in Dung Chi Dang, Deputy President Forrest was influenced to some extent by what he considered to be very real attempts at rehabilitation.
(c) In my view the most persuasive authority in this context is the decision of Justice Mathews, then President of this Tribunal, in Hong Teng Ung v Minister for Immigration and Multicultural Affairs. She referred in particular to Deputy President Bannon's decision in Gogebakan, paragraphs 47-52, as follows:-
47. This gives rise to the very difficult issue, raised by Mr Turner, as to when, if at all, the stage is reached when the problems of a person in the position of the applicant become, as Mr Turner puts it, Australia's problems. In this regard, Mr Turner relied heavily on the decision of Deputy President Bannon QC in Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544. The applicant in Gogebakan came to Australia at the age of eight and was 25 at the time of the hearing. Deputy President Bannon made the following observations:
The view I have formed is that the Applicant is a problem. He has a very bad criminal record and as such there is a risk that he may offend again. However, I have come to the reluctant conclusion that the Applicant has become Australia's problem. It was not by his conscious volition that he arrived in Australia at the age of eight years. ...
...
I recognise that the power of deportation has not been lost. (See Pochi v Macphee (1982) 151 CLR 101). Nevertheless it appears to me that the respondent's policy and the remarks of Brennan J in Salazar-Arbalaez (supra) were directed mainly at persons who arrived in Australia as adults and not as children aged eight years. It appears to me that if Australia is prepared to accept migrants with children of tender years, it is not reasonable to deport to foreign lands the child of an Australian citizen simply because that child is a criminal and was born in a foreign country and is not naturalised. It is neither compassionate nor in the best interests of Australia to deport children arriving as migrants because of later crimes. ... (p 547)
48. Deputy President Bannon thus recommended to the respondent that the deportation order be revoked. This recommendation was not accepted, and the Minister decided to proceed with the deportation. A further Federal Court challenge to this decision was unsuccessful (Nikac and others and Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65).
49. The criminal deportation policy which was then in force made no express reference to the issue of deportation of adults who had arrived in Australia as minors. On 8 December 1988, the then Minister, in discussing Mr Gogebakan's case, made the following comments in Federal Parliament:
A sensitive issue which also arises from time to time concerns the liability for deportation of an adult who arrives in Australia as a minor. Clearly, the time a person has been in Australia and the degree of connection persons have with their country of origin are relevant factors in coming to a decision on whether or not a non-citizen resident ought to be deported when the person has offended against the laws of Australian society. The view has occasionally been expressed that persons who have migrated to Australia when they were minors ought never to be deported. This is not consistent with the legislation or Parliament's intentions. I share concerns about the desirability of deportation in these cases but in many we are dealing with an offender who embarked on a life of crime as a child and who pursues that life into adolescence or adulthood. Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crime, I believe a decision to deport must seriously be entertained.
50. Much of the Minister's comments have since been incorporated into para 20 of the deportation policy statement, issued in December 1992. Even before the revised statement was issued, Deputy President Bannon's comments in Gogebakan were subject to judicial criticism. In Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 145 Keely J made the following observation in relation to Gogebakan:
The reference to deporting "children" is a reference to persons who had been children on arrival in Australia. The Applicant in that case, who was 25 years old at the time of the hearing, was described by the Tribunal as having "a very bad criminal record" and as one who "may offend again" - the latter being a matter which the Tribunal regarded with "considerable anxiety". Notwithstanding those observations, the Tribunal did not explain on what basis it concluded that it was not "in the best interests of Australia" to deport persons who arrived as "children" but later have been convicted of serious crimes. In my opinion there are great difficulties in reconciling that statement with the principle enunciated by Brennan J, in Re Salazar-Arbelaez (supra), that it is the "duty of the Tribunal ... to assess whether a particular Applicant is at an unacceptable level of risk": see also Re Loh (at 162) where the Tribunal stated that the risk of recidivism is a matter which must be considered by the Tribunal. (p 150)
51. Since then, as already indicated, the deportation policy statement has been re-issued. Paragraph 20, quoted earlier in these reasons, incorporates much of the then Minister's statement relating to Gogebakan, and emphasises that where a pattern of criminal behaviour indicates a likelihood that the person will commit further serious crimes, deportation should be seriously considered notwithstanding that the person arrived in Australia as a minor.
52. Accordingly the legal and policy considerations relied upon by Mr Turner in his submissions before me are no longer as one-sided as they at one time appeared to be. Certainly the fact that the Applicant arrived in this country as a young child is an important consideration. It must be assumed that many of the influences which led to his anti-social behaviour were encountered locally. His parents have apparently done all they can in an endeavour to counter these influences, unfortunately with little success. However the overriding consideration, as stressed in the policy statement, is the need to protect the Australian community against the criminal behaviour of non-citizens.
It will be noted then that Justice Mathews did not agree with the approach of Deputy President Bannon in Gogebakan. In any event, and having regard to Direction 9, it is its provisions which are binding on me, and thus requiring a balancing of the hardship factor against the relevant primary consideration.
At the end of the hearing, and after Ms Hanstein had completed her closing submissions, (and again with the consent of the Applicant she furnished her closing submissions first), the Applicant said that he had nothing to say and would abide by the decision of the Tribunal. The Applicant is not unintelligent, and he is not inarticulate. It is sad indeed that, notwithstanding the support of his family, he has not been able to make any productive use of such talents as he has; indeed it must be said that he has wasted the opportunity given to him to make a life for himself in Australia. His family are not people of means; many of them appear to be reliant upon Australia's social security system. (They must live very carefully if these means are sufficient to finance the travel undertaken by them). All felt that the Applicant had succumbed to the influence of a bad peer group. It was not clear to me that they were aware of the precise nature and extent of the Applicant's criminal record.
I have come to the conclusion, in the circumstances, that this is not a case where my discretion can be exercised in favour of the Applicant. Accordingly the decision under review must be affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................[sgd. Kwai-Ling Wong]..........
AssociateDate/s of Hearing 13 –14 February 2001
Date of Decision 27 February 2001
Applicant Self Represented
Representative for the Respondent Ms Sharon Hanstein
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