Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 824

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 824

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/768

GENERAL ADMINISTRATIVE DIVISION		)
Re		HOANG VAN NGUYEN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis AM Q.C., Deputy President

Date26 August 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] The Hon R N J Purvis AM Q.C.
  Deputy President

CATCHWORDS

IMMIGRATION –Applicant arrived in Australia at age 16 as a refugee from Vietnam – Applicant held transitional Permanent Visa – Applicant convicted of supplying prohibited drug – series of criminal offences – serious criminal record – Applicant imprisoned for two years – Applicant suffers drug addiction – visa cancelled on basis Applicant is not of good character - risk of recidivism high and protection of the Australian community – no ties to Australian community – considered impact on family members in Australia – Applicant has family in Vietnam -  decision affirmed

Migration Act 1958 section 501

Ministerial Direction 21      

REASONS FOR DECISION

26 August 2005 The Hon R N J Purvis AM Q.C., Deputy President       

the application

1. This is an application by Mr Hoang Van Nguyen (“the Applicant”) seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 7 June 2005. By such decision the Respondent cancelled the Applicant’s Resident Return Visa pursuant to section 501(2) of the Migration Act 1958 (“the Act”).  A consequence of the cancellation of the visa is that the Applicant would be liable to be deported to Vietnam.  He is presently detained in Silverwater Correctional Centre where he is serving the remainder of a term of imprisonment imposed upon him on 4 February 2003.

2.      The Statement of Reasons of the Respondent contained, amongst other findings, a series of considerations supporting the decision.  It is relevant to refer to them at this stage as they highlight the matters of concern in this appeal.   They are relevantly as follows:

“...

[10]…Mr Nguyen has been convicted of the following s501 (7) (c) applicable offences:

·On 22 June 2001 at Campbelltown District Court, Mr Nguyen was convicted of Supply prohibited drugs on an ongoing basis.  He was sentenced to 2 years and 6 months imprisonment with a non-parole period with conditions of 18 months.

·On 4 February 2003 at Campbelltown District Court, Mr Nguyen was convicted of Supply prohibited drugs on an ongoing basis.  He was sentenced to 4 years imprisonment with a non-parole period of 2 years.

·On 22 August 2003 at Liverpool Local Court, Mr Nguyen was convicted of organise/Conduct/Assist drug premises same – 1^st offence.  He was sentenced to 12 months imprisonment.

…

[31] Mr Nguyen has a lengthy criminal history which began in 1991. He has previously breached the conditions of his parole.  His offences consist mostly of drug and property offences…

…

[34] During his incarceration, Mr Nguyen has been charged with only two internal infringements, with the one, for fighting, being recorded in 1995 and the other, for not complying with routine, being recorded in 2000.

[35] It is open for you to find that there is a continuing risk that Mr Nguyen will re-offend.

…

[37] Some of Mr Nguyen’s offences are listed as serious in the Direction.  The Government has a strong interest in deterring others from committing offences of this nature.

…

[39] Some of the offences committed by Mr Nguyen are considered by the Government to be serious.  The nature of these offences are such that the Australian community expects non-citizens who breach Australian laws while in Australia and commit these crimes to have their visa cancelled.

…

[43] Mr Nguyen has been residing in Australia for 18 years.  He arrived in 1986 as the holder of a refugee visa.

[44] Mr Nguyen arrived in Australia to join three brothers who were already living in Australia.  He has his mother and four other siblings in Vietnam.  His father is now deceased.

…

[50] It is open for you to find that visa cancellation would cause significant hardship to Mr Nguyen.

…

[52] It is open for you to find that visa cancellation would cause significant hardship to Mr Nguyen’s three brothers in Australia.”

the issues for determination

3. Mr Lucas, for the Applicant, conceded that the Applicant is a person not of good character within the meaning of section 501(6) of the Act. Whether the Applicant is a person not of good character is not at issue in this application.

4.      The issues for determination identified by the representatives of the parties are those specified in Ministerial Direction 21.  The relevant primary considerations are the nature and seriousness of the Applicant’s criminal conduct and factors relevant to the protection of the Australian community including questions of recidivism together with the expectations of that community.  There are no children.  There are, however, other considerations that I am to take into account and, as they relate specifically to this matter, they include any possible disruption to the Applicant’s family if deportation should eventuate, hardship to the Applicant and his family and its composition, any evidence of rehabilitation and good conduct, the nature of the Applicant’s visa and the purpose and duration of the Applicant’s stay in Australia including any compassionate considerations.

the hearing

5.      At the hearing of this application the Applicant was represented by Mr Alan Lucas of Counsel; the Respondent by Mr Leonard Leerdam and Ms Kate McNamara, solicitors of Philips Fox Lawyers.

6. The documents required to be lodged by the Respondent with the Tribunal and provided to the Applicant pursuant to section 501G of the Act were admitted into evidence and marked G1 to G21. Documentary material tendered on behalf of the Applicant and received as one exhibit comprised the following:

Exhibit A/1     Statement of Hoang Van Nguyen

2    Statement of Toan Van Nguyen

3    Statement of Nhung Kim Thi Nguyen

4    Statement of Tuan Van Nguyen

5    Statement of Phuong Van Nguyen

6    Reference from Dr Van Nghia Nguyen

7    Reference from the United Vietnamese Buddhist Temple

8    Miscellaneous Certificates

The Applicant and his brothers Mr Tuan Nguyen, Mr Toan Nguyen, Mr Phuong Nguyen and his sister Mrs Nhung Kim Thi Nguyen gave evidence on which they were each cross-examined.

relevant statutory provisions and ministerial direction

7. Section 501 of the Act relevantly provides that:

“501     Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

….

(2) The Minister may cancel a visa that has been granted to a person if:

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

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

…

Character test

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or

(b)…

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; 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

…

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.”

8. Section 501 (7) provides that:

“Substantial criminal record

(7) For the purposes of the character test, a person has a substantial criminal record if:

…

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

…”

9. If the Tribunal is satisfied that the Applicant does not pass the character test, then the discretion provided for by section 501(2) of the Act is available to it. In exercising the discretion Ministerial Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that Direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations. Other considerations are also to be given appropriate weight, any one of which is not to individually out weigh a primary consideration.

10.     Paragraph 2.6 of the Ministerial Direction 21 states:

“2.6     It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

(a)       the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:

•persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;

•the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and

•offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community

…”

11.     Paragraph 2.7 states in part:

2.7      “It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community.  Decision-makers should have due regard to the Government's view in this respect, including:

(a)the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

…”

12.     Paragraph 2.11 of the Direction states:

“2.11    General deterrence aims to deter other people from committing the same or a similar offence.  While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa.  The general deterrence factor may be relevant in a number of ways:

(a)       the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b)       the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.”

13.     Paragraph 2.12 of the Direction states:

“2.12    The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person.  Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect”.

chronology of events

14.     A chronology of significant events relevant to this decision is as follows:

1970, July 7    Applicant born in Vietnam

1985Applicant leaves Vietnam and spends time in the Philippines

1986, July 13  Applicant arrives in Australia as holder of a permanent refugee visa sponsored by his brother

1994, January 9                  Applicant departs for Vietnam

1994, April 14  Applicant returns from Vietnam

1996Applicant obtains Australian residency

1996, October 27                Applicant departs Australia

1997, March 27                   Applicant arrives in Australia

2001, June 22  Applicant convicted of supplying prohibited drugs

2003, February 4                 Applicant convicted of supplying prohibited drugs

2003, August 22                  Applicant convicted of drug offence

2003, September 10           Applicant advised of Respondent’s intention to consider cancellation of his visa

2004, December 15            Protection Obligations Assessment

2005, February 8                 International Obligations and Humanitarian Concerns Assessment

criminal history of the Applicant

15.     The criminal history of the Applicant is as follows:

Charge date	Sentence date	Nature of Offence	Penalty
26 July 1991	9 January 1992	found in gaming house	Fined $200
16 October 1991	14 May 1992	enter enclosed lands	Fined $300
16 October 1992	4 August 1993	possess prohibited weapon	Fined $500
16 April 1993	27 September 1993	supply prohibited drug	2 months imprisonment
3 September 1993	27 September 1993	possess prohibited drug, goods in custody, supply prohibited drug	2 months sentence
4 August 1994	15 December 1994	break, enter and steal, possession housebreaking implements, goods in custody	Periodic detention
27 December 1994	15 March 1995	possession of prohibited drug	Good behaviour bond 2 years
22 February 1995	24 July 1995	Introduce or attempt to introduce syringe into prison	Warrant to issue
6 July 1995	15 August 1995	goods in custody, possession of prohibited drug, breach of recognisance	3 months imprisonment
15 August 1995	15 August 1995	Introduce syringe into prison	3 months imprisonment
8 May 1997	4 June 1997	supply prohibited drug	Community service order
3 August 1998	9 September 1998	possess prohibited drug	Fined $300
24 September 1998	21 October 1998	enter enclosed land, self-administer prohibited drug	Fined $1200
6 October 1998	6 April 1999	possess prohibited drug, goods in custody, goods reasonably suspected of being stolen, drive unregistered vehicle, use uninsured vehicle, not produce licence, state false name, possess implements to enter, drive conveyance without consent of owner	Fined $400 and community service order
12 November 1998	9 December 1998	enter enclosed land	Fined $500
12 August 1999	8 September 1999	enter enclosed land	Fined $400
22 August 1999	15 September 1999	enter enclosed land	Fined $500
5 September 1999	30 September 1999	goods in custody, resist police officer, supply prohibited drug	Convicted warrant to issue
28 October 1999	3 November 1999	hinder police, goods in custody, supply prohibited drug	6 months imprisonment
19 October 2000	22 June 2001	supply prohibited drug	Imprisonment 2 years and 6 months
7 August 2002	4 February 2003	supply prohibited drugs	Imprisonment 4 years
7 August 2002	21 March 2003	goods in custody, goods suspected of being stolen	Taken into account with sentence 4 February 2003
7 August 2002	22 August 2003	organise, conduct, assist drug premises	12 months imprisonment

other facts relevant to criminal activity

16.     On 22 June 2001 the following observations were, inter alia, made by the sentencing judge:

“…

He commenced smoking heroin at the age of twenty one, and around four years later, he commenced to inject it.

…

This is not a case were leniency can be extended because an Offender commits offences to fund a drug habit…

I am satisfied that he did commit the offence for the purpose of funding his own drug habit…

So, in terms of the drug trade, he is on the bottom rung. Nonetheless, it is clear when one looks at the legislation and what has been said about it, that it does apply to people who repeatedly supply, even at this level.

…

He does not have the benefit of prior good record or youth. The prospects of rehabilitation could not be said to be high.

…

In my view, nothing other than a full time custodial sentence is appropriate because of the commercial nature of the offence…but to do anything other than impose a full time custodial sentence would not, in my view, adequately reflect the objective seriousness of the offence.”

17.     On 4 February 2003 observations were made by the sentencing judge those relevant to these reasons being:

“…

The Crown case against him is in my view strong. That is not the only matter to be considered in determining whether there is contrition. The Offender made no admissions.  Considering all the evidence apart from the early plea of guilty, and the fact that the undercover officer has been relieved of the necessity to attend court to give evidence at a trial, there is nothing that indicates contrition that is appropriate to be reflected by leniency of sentence.

Between 31 July last year and 8 August last year, on four separate occasions, the offender supplied heroin to an undercover police officer.  Except for the last transaction, all of them were transactions where the police officer provided $50 in return for the drug. The transactions were carried out in a public place.  The last transaction involved the exchange of $100 for the drug.

…

Shortly after that transaction, the Offender was arrested by police.  At the time of his arrest, he was in possession of $275. This gives rise to the first count on the Form 1 schedule.  Later the same day the premises where he was living was searched.  A further quantity of money, $340, was found. This gives rise to the second offence on the Form 1 schedule.  During that search, the police also located a set of scales and a packet of small water balloons.  In the sales to the undercover officer, water balloons had been used to secure the drugs for the purposes of the deals.

The things found in the flat, the use of the raffle tickets and the balloons that were spat out on 7 August indicate that the sales to the undercover operative were not isolated sales.

…

He has been addicted to illegal drugs since 1991.  I accept that he committed this offence for the purposes for funding his drug addiction.  That explains but does not excuse his offending.  The only evidence of any attempts that he has made to rehabilitate himself, before the commission of these offences, was whilst on parole for a period of two months, finishing in July 2002, when he undertook a drug and alcohol counselling program. He reported to the psychologist that he felt no benefit from the program.

He acknowledges that drugs are the problem that underlie his criminal offending and he acknowledges the need to address that addiction…

…

A non parole period of eighteen months was fixed.  He was released to parole on 18 April 2002.  He had been on parole for almost four months at the time he was arrested for this matter.

I should observe also that, in the past, he has been placed upon a bond and breached it, and also given periodic detention.

…

It would be apparent, from what I have already said, that this offence was committed whilst on parole in relation to a similar offence.  This is an aggravating feature.  In all the circumstances, it is hard to be optimistic about the Offender’s prospects of rehabilitation.

Although the actual quantity of drugs supplied on each occasion is small, the matter is a serious offence.  He was engaged in drug trafficking for financial or material reward…Offences of this type require a strong element of deterrence, in his case, particularly personal deterrence, to be reflected in the sentence to be imposed.”

18.     In a pre-sentence report, dated 28 March 2001, of the NSW Probation and Parole Service it is stated amongst other matters that:

“…Mr Nguyen stated that he began smoking heroin at the age of 21 and 4 years later he began to inject it.  He has not undertaken any drug and alcohol counselling, he has not tried methadone and stated to the undersigned that he had not heard about rehabilitation centres.

…

Mr Nguyen presented as a person with an entrenched drug addiction which he supported by selling illicit drugs. He has made no efforts to combat his addiction and his claim of never having heard of rehabilitation is difficult to believe. He has been given opportunities on Good Behaviour bonds, Community Service Orders and Periodic Detention Orders.  He has re-offended each time and it is noted that his current offences were committed six weeks after his release for similar matters”

character

19.     On the basis alone of the convictions recorded against him, I am satisfied that the Applicant is a person not of good character.

20.     Further, he has consistently, since first arriving in Australia, acted regardless of the law and has shown no inclination to comply with the responsibilities of a lawful resident of this country.  He arrived under a refugee program but has abused the hospitality that was extended to him.  He has acted regardless of the welfare of those who might have looked to him for support.  He has made a minimal contribution to the Australian society and there is not any evidence of his seeking to integrate into it.

other factors relating to the applicant and consideration of hardship

21.     After he first arrived in Australia at the age of 16 years, the Applicant spent a short time at a school in Brisbane, while living with his brother.   After leaving school he obtained employment at a hotel, and then did some farming work.  In due course and in about 1990/1991 he left Queensland and travelled to Sydney initially living with another brother.  However, it was not long before he began to associate with a criminal element and came under the attention of the law enforcement authorities.  He began to use drugs and then deal in them.

22.     On two occasions after his release from prison, the Applicant, with financial assistance from his eldest brother, travelled to Vietnam to “detox”, being, he said, afraid that he would “get caught up with bad company” if he stayed in Australia.  Whilst in Vietnam he lived with his family.

23.     There is not any evidence as to the Applicant’s work history whilst living in Sydney and out of prison.  There is not any evidence as to his engaging with the community other than its criminal element.

24.     Cancellation of his visa and deportation to Vietnam would undoubtedly cause hardship to the Applicant.  He says that he now “feels great remorse for what I did. It was shameful for me and my family”.  He says that he now understands his problem and recognises that what he did was wrong.   He says that whilst in prison he has attended some courses (Exhibit A/8) extending from May 2003 to date most of them in the last 12 months.  He has been living in Australia since the age of 16 years.  Although he says that he has attended English language classes; it was still necessary for him to give his evidence through a Vietnamese interpreter.

25.     Even be it the Applicant says that he proposes to change to a new life, the Tribunal, being mindful of his continuing criminal conduct over many years, cannot express confidence in his proposal.

family considerations

26.     The Applicant has three older brothers and a sister now living in Australia.  His mother, two sisters and one brother live in Vietnam.  Each member of the family living in Australia gave evidence at the hearing in support of their brother’s application to be allowed to remain in this country.  They each expressed concern as to what might happen to him if he is deported.   Their father, now deceased, was a member of the South Vietnamese army as was the oldest brother.  The Applicant’s family believe that this involvement of their father and brother as well as the drug offences in Australia might cause the Applicant to be placed under surveillance by the authorities and might also require him to undergo a period of indoctrination.  However, it is to be remembered in this context that the mother, sisters and a brother are living without concern in Vietnam.  As well the Applicant and each of the brothers living in Australia have on different occasions returned to Vietnam, spent time there and lived peacefully with family members.

27.     The assessments conducted by the Australian authorities do not evidence the relevant concern.

28.     It is apparent from the evidence that the Applicant to this time has not, except after his first arrival, spent any lengthy periods living with or associating with his family members.

29.     Mr Tuan Nguyen said that he is willing to help his brother on his release from prison.  He can provide him with employment if he wants to live in Queensland.  The Applicant did not say whether this proposal appealed to him.

30.     Tuan has returned to Vietnam for his daughter’s engagement and wedding.  He stayed for a month on each occasion, living with his family. He said that whilst he had seen little of the Applicant after he left Brisbane, he would nevertheless assist as best he could.

31.     Mr Toan Nguyen has also returned to Vietnam on two occasions and stayed with his family.  It was with Toan that the Applicant first lived after moving to Sydney.  He became aware of the Applicant’s involvement with drugs in about 1996/1997.  He said that when he became aware of the fact he “felt sad about his situation”.  Even though he now says he wants to support the Applicant there is not any evidence of the brother in the past attempting to assist the Applicant put aside and abandon his criminal activities.  If the Applicant is deported to Vietnam, Toan does not think he would provide him with any financial assistance.

32.     Mr Phuong Nguyen has returned to Vietnam on three occasions, each time staying with his family.  The Applicant lived with Phuong and his family for about one year.  Phuong cannot recall when first he learned of his brother’s drug addiction, but by the time he went to jail he was aware of the criminal activities.  It was Phuong who paid for the Applicant’s ticket to return to Vietnam to “detox”.  He did not tell his mother but he did tell one of his sisters in Vietnam of the Applicant’s criminal activities.  It is Phuong who expressed an awareness of his brother’s addiction and concern for his future.  He is prepared to assist him in Australia “if I have money to spare” but only if “he shows remorse and promises to never do it again”.

33.     Mrs Nhung Nguyen has only recently arrived in Australia.  She is the Applicant’s youngest sister.  She is married and living with her husband.  She expressed concern for the Applicant if he is returned to Vietnam, saying that in her opinion “the government will make it difficult for him when he applies for work or anything”.

discretionary considerations

34.     As already indicated I am satisfied that the Applicant does not pass the character test.  Accordingly, the Tribunal is required to consider the discretionary factors available to it.  I am to have regard to the three primary considerations and a number of other considerations already identified in these reasons.

35.     I am satisfied that the criminal conduct of the Applicant has been of a very serious nature.  I note that paragraph 2.6(a) of the Ministerial Direction refers to the production, importation, distribution, trafficking (including for this purpose) commercial dealing or selling of illicit drugs as very serious offences.  Paragraph 2.6(b) of the Ministerial Direction stipulates that, amongst other involvements, organised criminal activity resulting in conviction in Australia is to be regarded as a very serious offence.

36.     I am satisfied on the basis of the evidence before the Tribunal, including the observations made by the learned District Court Judge, that the criminal conduct of the Applicant is of a very serious nature.

37.     I am mindful of the fact that the Applicant again offended whilst on parole.  I am satisfied having in mind his convictions and past behaviour that there is a likelihood that the Applicant may re-offend.  I am satisfied that the risk of recidivism is quite high.  The fact alone of the Applicant re-offending whilst on parole suggests that there is a significant likelihood that he will continue to re-offend in Australia in the future if his visa is not cancelled.

38.     The conduct engaged in by the Applicant was extensive and continuous.  There is no doubt that cancellation of the visa should send a message to the Australian community, including the Vietnamese community, that conduct in breach of the law may well attract visa cancellation.

39.     The Australian community expects a resident to obey Australian law.  This expectation was broken by the Applicant on a number of occasions by his serious criminal conduct.  If the Australian community was aware of the full nature of the conduct of the Applicant, I am satisfied it would, on this ground alone, expect a visa to be cancelled.   I am satisfied that members of the Applicant’s family living in Australia are genuine in their concern for his welfare in the event of his being deported to Vietnam.  The assessment reports earlier referred to do not evidence support for this concern.  The concern may well be subjective on the part of each of the relatives.  Nevertheless, it is sincerely held by them and is a factor to be taken into account in arriving at a preferable decision in this matter.

40.     It was submitted on behalf of the Applicant that his criminal conduct was at the level of “lower echelon”, and that his addiction to the use of drugs was the cause of his criminal conduct.  It was further submitted that he has changed.  The Tribunal is not satisfied on the evidence that these submissions can be sustained.  His use of drugs extends over a very lengthy period of time and even be it he was cautioned, given a suspended sentence, placed on a recognisance, he still offended and in more recent times offended more seriously.  It is fair to say that in the last 12 months or so he has engaged in various courses provided by the authorities.  However, the evidence of his involvement in these activities does not, as it was submitted, show that he has changed and that he is fit to re-enter the Australian community.  I am not satisfied that the certificates themselves show a genuine attempt at rehabilitation; nor that he has “finally addressed the problem”.  It was further submitted that the Applicant has never effectively lived in Vietnam “as an adult” and that “the Australian community might think it rough for a person arriving at the age of 16 years to be thrown out at the age of 35 years”.  This submission is made regardless of the conduct of the Applicant whilst in Australia and the minimal contribution that he has made to the community.  He has over a lengthy period of time in fact acted against the interests of the community.

41.     There is no evidence of the Applicant having a meaningful connection with any part of the Australian community.  The Tribunal agrees with the submission made on behalf of the Respondent, that the community faces or could face further damage by reason of conduct of the Applicant if he is allowed to remain in Australia. Whilst there are in evidence certificates bearing upon the Applicant’s being engaged in activities available to him whilst he is serving his sentence, it is apparent that such involvement is of recent date and whilst of a vocational nature and does not bear directly on his conduct or character.  Having been incarcerated for a lengthy period of time there is not any other evidence as to recent conduct.

42.     The subject visa is a resident return visa.  The Applicant has been on notice of the possibility of visa cancellation for some time.

43.     On behalf of the Respondent, Mr Leerdam submitted that the Australian community had, by reason of the conduct of the Applicant, been subjected “to enormous damage”.  This damage was as a consequence of his contribution to the heroin trade in this country.  The Tribunal, it was said, should “look at the damage that has been caused in his plighting his trade”.   The Tribunal strongly endorses this submission made on behalf of the Respondent.  Members of the Australian community are to be discouraged from involving themselves in the drug trade.  If members of a particular community are so involved, then it is appropriate for other members of that same community to, if possible, take action to discourage them.  If a consequence of engaging in criminal activities is the loss of a visa then this may well serve as a powerful deterrent.

44.     An assessment was made on behalf of the Respondent as to whether Australia had international obligations under the Refugees’ Convention, the Convention against Torture and the International Convention on Civil and Political Rights which were likely to be breached if the Applicant’s visa was cancelled and he was removed to Vietnam.  On the basis of the evidence before the Tribunal including that of the Applicant’s relatives, I am satisfied that the Applicant is not a person to whom Australia has protection obligations under the Refugees’ Convention  and that country information does not indicate that returning the Applicant to Vietnam may result in adverse attention being directed towards him.  It is noted that he might be placed under surveillance by the Vietnamese authorities for a period to observe if he becomes involved in illegal drug dealing in Vietnam.  Further, there is no indication that the Applicant requires medical treatment for any illness and condition unassociated with his use of heroin.

45.     The circumstances of the Applicant’s entry into Australia do not give rise to any significant or compassionate considerations.

46.     On the basis of the matters set forth earlier in these reason, I am satisfied that the primary considerations relevant to the protection of the Australian community and the expectations of that community are in favour of visa cancellation.  The hardship that will be experienced by the Applicant and his relatives on the evidence before the Tribunal is not sufficient to outweigh the primary considerations.  Nor do the other non-primary considerations raise any significant issues in favour of non-cancellation.

47.     Accordingly, for the reasons herein before set forth, I am satisfied that the primary considerations favouring visa cancellation outweigh the other considerations.  Accordingly, the decision under review is affirmed.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM Q.C., Deputy President

Signed:         A. Krilis  Associate

Date/s of Hearing  10 August 2005
Date of Decision  26 August 2005
Counsel for the Applicant         Mr Alan Lucas
Solicitor for the Applicant          Mr Mark Rumore             
Solicitor for the Respondent     Mr Leonard Leerdam, Ms Kate McNamara