Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 444

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 444

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/55

GENERAL ADMINISTRATIVE DIVISION		)
Re		TRONG HUU NGUYEN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date17 May 2005

PlaceAdelaide

Decision

The Tribunal sets aside the decision under review and remits the matter to the respondent for further consideration, and directs that:

(a) the discretion under s 501(2) not to cancel the applicant’s visa be exercised in favour of the applicant; and

(b)      the applicant be formally warned that if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

IMMIGRATION – Transitional (Permanent) visa class BF - decision not to cancel visa where applicant fails character test - substantial criminal record - Ministerial Direction No. 21 - primary and other considerations – applicant has recovered from heroin addiction – best interests of children – prospect of better/stronger relationship with children in the future – decision under review set aside.

Migration Act 1958, s 501(2)

Minister for Immigration and Multicultural and Indigenous Affairs and Hicks (2004) 81 ALD 588

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673

Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268

Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822

Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326

REASONS FOR DECISION

17 May 2005   Deputy President D G Jarvis

1.      Trong Huu Nguyen is an immigrant from Vietnam.  He arrived in Australian on 9 March 1990 under the Special Humanitarian Programme (Vietnamese).  He was the holder of a Transitional (Permanent) visa class BF granted to him by operation of law on 1 September 1994.

2. On 22 February 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to cancel the applicant’s visa on the grounds that the applicant did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). The delegate also refused to exercise the discretion pursuant to s 501(2) of the Act not to cancel the applicant’s visa. The applicant has applied to this Tribunal for review of that decision.

Issues for the Tribunal

3. The Statement of Facts, Issues and Contentions lodged on behalf of the applicant includes a concession that he does not pass the character test under s 501 of the Act. This could not have been contested in any event, because under s 501(6)(a) of the Act, a person does not pass the character test if he or she has a substantial criminal record, and under s 501(7)(c), a person is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of twelve months or more. Mr Nguyen had been sentenced to terms of imprisonment of this duration on two occasions.

4. There is a discretion under s 501(2) of the Act not to cancel a visa. The only issue before the Tribunal is whether the discretion not to cancel the applicant’s visa should be exercised in Mr Nguyen’s favour.

Background Evidence

5.      I make the following findings from the evidence of the applicant and from the documentary material before me.  I accept the applicant’s evidence except where otherwise stated in these reasons.

6.      Mr Nguyen was born in Vietnam on 15 August 1971.  His father was in the American Army, and when the communists took over they put him in gaol.  His older sister went by boat to Thailand and, after staying there for four or five years, was accepted as a refugee in Australia.  She now lives in Sydney.

7.      In 1989 Mr Nguyen’s father sent him and another sister away to protect them.  They stayed in a refugee camp for about a year in Malaysia.  Mr Nguyen was then eighteen years old.  He and his sister were separated, and only got to see each other about twice a week.  They were later accepted in Australia as refugees and lived in Sydney with their older sister, who sponsored them.  However, the younger sister Hoa, wanted to move to Adelaide to be with her partner, and she and Mr Nguyen went to Adelaide.  Hoa still lives in Adelaide and has two children.

8.      Mr Nguyen’s older sister still lives in Sydney.  His parents, who are now elderly, live in Vietnam, and he has two other sisters and two brothers who also live in Vietnam.

9.      Mr Nguyen has an eleven-year old son named Joe Lowry.  When he was 22, Mr Nguyen had a relationship with Joe’s mother, Doreen Lowry, for about seven months.  Joe lives in Ceduna with his grandmother.  Mr Nguyen has a second son William who is aged eight.  His mother is Cynthia Park.  Mr Nguyen had a relationship with her for about four years.

10.     When he first came to Australia, Mr Nguyen worked in Sydney as a concreter for about three or four months.  He said he also worked in a restaurant for nearly a year.  After he moved to Adelaide, he worked on a farm picking flowers and strawberries for about six months.  He also referred in evidence to working in a restaurant in Canberra for twelve months, but it was not clear whether he worked for two periods of twelve months in restaurants, or whether his earlier reference to restaurant work was to his work in Canberra.

11.     Mr Nguyen became addicted to heroin.  He then stopped working.  His evidence as to when his addiction occurred was most confused.  At first he said that this was after his younger son William had been born, but on further questioning he said that it was after Joe had been born and before he met William’s mother.  I find that the latter evidence is more likely to be correct.

12.     Mr Nguyen said that he gave up heroin on two occasions, and that he was able to give up heroin by himself, without participating in any rehabilitation programme.  He said further that he last used heroin about four years ago.  This date is disputed by the respondent, and I will refer later in these reasons to that issue.

13.     Mr Nguyen has the following convictions in South Australia for which he was sentenced to terms of imprisonment:

(a)On 3 September 1999 he was convicted in the Port Adelaide Magistrates Court of the following offences which occurred on the dates indicated below:

15.04.1998    Unlawful possession

23.11.1988    Larceny

13.03.1999    Break and enter building and commit offence

04.04.1999    Break and enter building and commit offence

04.04.1999    Unlawful possession

12.06.1999    Break and enter building and commit offence

He was convicted without penalty of the first five offences listed above, and sentenced to twelve months’ imprisonment for the last of the offences.  This sentence was suspended for twelve months on his entering into a bond to be of good behaviour for eighteen months.

(b)On 13 July 2001 he was convicted in the Adelaide Magistrates Court of the following offences which occurred on the dates indicated below:

16.11.2000    Larceny

28.01.2001    Unlawful possession

He was sentenced to four weeks’ imprisonment on both offences, and the sentence was suspended on his entering into a good behaviour bond of twelve months.  This bond was not breached.  However, as a result of these offences, the bond referred to in paragraph (a) above was enforced, and Mr Nguyen was ordered to serve a reduced period of 161 days’ imprisonment.

(c)On 12 September 2001 he was convicted in the Port Adelaide Magistrates Court of non-aggravated serious criminal trespass (place of residence).  This offence had occurred on 1 February 2001, and he was sentenced to seven months’ imprisonment.  He had been arrested on the date of the offence, and his sentence was backdated to that date.  He was then released on 12 September 2001, and it appears that that period of imprisonment extinguished the suspended term of imprisonment which had been imposed on 3 September 1999. 

(d)On 6 November 2001 he was convicted in the District Court of South Australia of possessing a controlled substance for supply.  That offence had occurred on 27 July 2000 and he was sentenced to eighteen months’ imprisonment, which was suspended on his entering into a good behaviour bond.

(e)Regrettably, Mr Nguyen breached his bond a little more than a month later when he was convicted of driving with excessive blood alcohol and other traffic offences.  These offences occurred on 21 December 2001.  He was convicted of them on 6 December 2002.  After some considerable delay, on 5 August 2004, the District Court revoked the suspension of his bond and set a non-parole period of nine months’ imprisonment.  According to the criminal records placed before me, his term of imprisonment following the enforcement of the bond commenced on 24 May 2004 (exhibit R1, page 32).

(f)Finally, on 13 December 2003, he was sentenced by the Port Adelaide Magistrates Court to seven days’ imprisonment for driving under disqualification, driving without due care and failing to truly answer questions.  These offences took place on 30 September 2002.

14.     Mr Nguyen also has convictions for offences of larceny committed on 18 May 2000 and 27 June 2000 for which he was fined, a conviction for the offence of possessing (nominate controlled substance) committed on 12 October 2000, and offences of estreatment of bail committed on 11 November 2002 and 6 December 2002, for which he was fined.

15.     According to exhibit R1, the applicant has further convictions in New South Wales which were not referred to during the hearing.  These convictions are for refusing a breath analysis, stating false name, driving an unregistered vehicle, driving an uninsured vehicle and driving when unlicensed.  It appears that the charges were dealt with by the Fairfield Local Court on 9 July 1996, and the Court imposed a fine of $800 and a licence disqualification of three years on the first of the above offences, and fines of $300 for each of the remaining charges.

16.     It further appears from exhibit R1 that the applicant was charged with supplying a prohibited drug, namely heroin, and that warrants were issued by the Local Court of Wollongong on 24 June 1996 and 8 September 1997, but there is no record of the outcome of the warrants or of the charge against him ever having been dealt with.

17.     I drew the parties’ attention to the NSW records after the hearing, and invited them to make further submissions as to their relevance.  I received these further submissions on 11 and 13 May 2005.  The applicant’s representative, Ms Birss, said that he has no recollection of the 1996 convictions, but does not deny them.  She further pointed out that the heroin supply charge did not amount to a conviction, but remains merely an allegation and advised that on her “limited instructions”, the charge may have been defended if the prosecution had been pursued.  Counsel for the respondent advised that he was instructed that the NSW records were considered by the Minister to be accurate in the absence of any conclusive evidence to contradict them.  I will discuss the relevance of the NSW records below.

Legislation

18. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.

19.     Subsection 501(2) provides as follows:

“(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.”

Consideration of Ministerial Direction No. 21

20. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a Direction made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall address the relevant considerations in the Direction in turn.

21.     The three primary considerations in Direction No. 21 are as follows:

(a)the protection of the Australian community, and members of the community;

(b)      the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

First Primary Consideration - Protection of the Australian Community

22.     In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.

23.     Seriousness and Nature of the Conduct   The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction).  As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious.  It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)) and whether the crimes are not repugnant (paragraph 2.7(b)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).

24. I referred in paragraph 13 above to the offences committed by Mr Nguyen which resulted in terms of imprisonment. The fact that sentences of imprisonment were imposed is of itself an indication that the Courts concerned regarded those offences as serious. In the case of the convictions referred to in paragraphs 13(a) and (d) above, being the convictions recorded on 3 September 1999 and 6 November 2001, the sentences were for twelve months or more. The fact that each sentence was suspended on condition that Mr Nguyen entered into a good behaviour bond does not mean that they do not qualify as constituting a substantial criminal record under s 501(7) of the Act (see Minister for Immigration and Multicultural and Indigenous Affairs and Hicks (2004) 81 ALD 588 at [13]).

25.     The offence committed on 27 July 2000 of possessing a controlled substance for supply entailed an offence involving an illicit drug, namely heroin, and falls within the examples in paragraph 2.6 of the Direction of offences which the Government regards as very serious.

26.     Under paragraph 2.7 of the Direction, I must take into account the sentence imposed for the relevant crime, and (by virtue of paragraph 2.8(a)) any relevant mitigating factors.  Counsel for the applicant, Mr Charman, referred in this regard to the sentencing remarks of the Judge who dealt with the offence involving possessing heroin for supply.  Consistently with the principles laid down in such cases as Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 and Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673, counsel for the respondent, Mr Kennedy, did not seek to challenge the factual matters which the Judge referred to when imposing the sentence. The sentencing Judge said that the applicant and a number of other associates who were also heroin users had made a co-operative purchase with the intention of consuming the heroin, and that the applicant had pleaded guilty on the basis that he and the other persons were in effect supplying heroin to each other; and the charge was accordingly altered from possession of heroin for sale to possession of heroin for supply. The Judge described the offending as a serious breach of the criminal law, but accepted that there was no commercial element to the offending. The hearing was on 6 November 2001, and the Judge also took into account that the applicant had not consumed heroin since February that year. He sentenced the applicant to eighteen months’ imprisonment, and suspended this sentence upon the applicant agreeing to enter into a good behaviour bond for eighteen months.

27.     Having regard to the sentence imposed and the remarks of the sentencing Judge, I accept Mr Charman’s submission that the offence involving the supply of heroin was at the lower end of the scale of criminal conduct for that kind of offence.  The offence happened at a time when the applicant was addicted to heroin, but on the evidence before me this is no longer the case.  I also note that according to a report of a psychologist, Dr Jack White, which was prepared as a result of his first breach of a good behaviour bond, Mr Nguyen was assessed as having an overall level of intelligence and cognitive functioning of an average seven year old child, and he was further disadvantaged by his inability to understand English.  The doctor further concluded that Mr Nguyen was likely to satisfy the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood.  These matters also tend to mitigate the seriousness of the offence concerned.

28.     Counsel for the respondent does not rely on the offence committed on 1 February 2002, namely non-aggravated serious criminal trespass (place of residence), as a “home invasion” for the purposes of paragraph 2.6 of the Direction, having regard to the circumstances of the offence recorded in the police apprehension report (exhibit R2, pages 43 – 48).  This indicates that the applicant gained entry to a place of residence by removing a fly-wire screen from an unlocked window at a time when no-one was home, and he stole a few foreign coins, apparently valued at about $5.00 (see exhibit R2, page 50).  Having regard to the circumstances surrounding the offence, I consider that it did not constitute “home invasion” or a serious offence for the purposes of the Direction.

29.     Likelihood of Repetition of the Conduct, and Risk of Recidivism   The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)).  According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. 

30.     In view of Mr Nguyen’s past conduct, Mr Kennedy submitted that there is a real risk of recidivism.  Mr Nguyen’s evidence on the issue of the date when he last used heroin was vague and unsatisfactory.  As mentioned above, he said that he last used heroin about four years ago.  However, a letter dated 24 July 2002 from the Vietnamese Community to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) refers to Mr Nguyen being “now close to his success in withdrawing from heroin” (exhibit R1, page 98).  Further, case notes prepared by the South Australian Police Department record that on 17 September 2002, Mr Nguyen has “reduced drug use since contact with Vietnamese CC” (exhibit R2, page 86).  These references indicate that Mr Nguyen’s evidence as to when he overcame his drug problem may not be correct.

31.     Further, it is very concerning that Mr Nguyen continued to offend notwithstanding that he had entered into good behaviour bonds.  Whilst his last two offences were for traffic offences, they were nevertheless serious offences which demonstrated a disregard of the law, and in the case of the earlier offence, a disregard of the safety of the community.  It is also most concerning that Mr Nguyen has never had a driver’s licence, but this did not deter him from driving, either at the time of his first recorded offences in New South Wales or at the time of his last two offences.  His most recent traffic offence of driving under disqualification was committed more than two and a half years ago, but he has been in prison for about twelve months of that period.  If allowance is made for the time when he was in prison, the time that has elapsed since his most recent offence is not significant.

32.     As against these matters, there is force in Mr Charman’s submission that the offences committed in February 2001 and earlier were all related to Mr Nguyen’s drug addiction, and that it is reasonable to infer that they were committed to fund his addiction.  While the date when the applicant last used heroin is uncertain, on the evidence before me, it appears that he is no longer using heroin, and if this continues to be the position, I think that the risk of recidivism will be significantly reduced.  On balance, I think that in all of the circumstances, that risk is moderate.

33.     I referred above to references in R1 to the applicant’s criminal record in NSW.  As the NSW police apparently did not pursue the heroin supply charge, and there was no evidence before me as to this charge other than the matters referred to in paragraph 16 above, I attach little weight to the existence of the charge.  I agree with the further submission of counsel for the respondent that the 1996 convictions for driving offences add further to the seriousness of the applicant’s criminal record, and show a disregard for the safety of the Australian community.  On the other hand, they occurred a number of years before the applicant last used heroin.  For these reasons I do not think they add to the risk of recidivism.  Further, they do not constitute serious offences for the purposes of the Direction.

34.     Mr Kennedy further argued that Mr Nguyen did not take advantage of rehabilitation assistance open to him.  However, the applicant said that he has been able to overcome his addiction by his own unaided efforts.  While it was a condition of the bond imposed in connection with the offence of possessing heroin for supply that the applicant “under take such drug programmes, drug counselling or treatment, as your community officer recommends” (exhibit R1, page 110), there is no evidence before me of what (if anything) was recommended by the community officer.  Indeed, on the applicant’s evidence, by the time when he was sentenced for that offence, he had given up using heroin.  In these circumstances, I do not think that the applicant should be criticised for not undergoing rehabilitation treatment.

35.     Mr Kennedy further submitted that the applicant’s contact with the Vietnamese Community Centre was merely to obtain assistance following receipt of the notice from the Minister that she was considering cancelling his visa, and I should not accept the applicant’s evidence that he was intending to become more involved with the Vietnamese community if his visa were not cancelled.  It was further pointed out that there is no evidence that the applicant has made any contribution to the Australian community.  I think there is force in these submissions, and find that the applicant has not made any contribution to the Australian community.

36.     General Deterrence   The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)).  Of course, any deterrence would depend on the publicity given to any cancellation of a visa.  In the present matter, if the applicant’s visa is cancelled, that will presumably become known to friends and acquaintances of the applicant, and may provide some deterrence to other persons.  Further, the fact of cancellation would put the respondent in a position where DIMIA could point to an established precedent and, indeed, it could give some publicity to this precedent if this became necessary.  However, counsel for the respondent did not rely on general deterrence in the present matter, and there is no evidence that the general deterrent effect would be significant if the cancellation of the applicant’s visa is confirmed.

Second Primary Consideration – Expectations of the Australian Community

37.     This second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination.  There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled.  This was recognised Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.

“Community expectation will of course mean different things to different people.  I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander.  It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported?, but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”

I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.

38.     This country received Mr Nguyen into its community as a refugee under a humanitarian programme.  It is reasonable to assume that the Australian community expects any non-citizens to be law-abiding citizens.  Crimes involving the use of heroin are particularly abhorrent.  The applicant has a significant history of offending which includes not only his conviction for a drug offence, but also larceny, housebreaking and serious driving offences.  He has not respected the opportunity he has been given to live in this country, or the responsibility which this entailed.

39.     I must also, however, take into account that the applicant appears to have ceased using heroin.  Further, he has been in Australia for more than 15 years, which is virtually all of his adult life.  The drug offence of which he was convicted was not a serious offence of its kind.  The offences which he has committed since he last used drugs have been traffic offences (although they were serious offences and were committed in breach of earlier good behaviour bonds).  Before he was imprisoned he had a relationship with his younger son which was clearly important to him (and I will refer to this in further detail below).  In all of the circumstances, I think that the Australian community would think it appropriate to give the applicant one last further opportunity to show that he can live in our community as a law-abiding and responsible citizen.

Third Primary Consideration – Best Interests of a Child or Children

40.     Paragraph 2.15 states that, in general terms, the child’s best interest will be served by remaining with his or her parents.  When assessing this consideration, decision-makers are directed by paragraph 2.16 to have regard, amongst other things, to the nature of the relationship between the child and the non-citizen (2.16(a)); the duration of their relationship and number and length of any separations (2.16(b)); the age and migration status of the child (2.16(c) and (d)); the likely effect of separation (2.16(e)); the time the child has spent in Australia (2.16(g)); the circumstances of the receiving country (2.16(h)); and any language and cultural barriers that may be encountered in the probable country of future residence (2.16(i) and (j)).

41.     Mr Nguyen gave evidence that his elder son, Joe, lives with his grandmother in Ceduna.  He is now eleven years old.  Mr Nguyen last spoke to Joe about twelve to eighteen months ago, and this was by telephone.  He said he last saw him about three years ago, and has not been able to see him because he lives so far away.  He has now lost Joe’s grandmother’s telephone number, and does not know where in Ceduna she lives.  He said he would like to gain access to Joe, but appreciates that he would need to arrange this through Joe’s grandmother, and he appreciates that the grandmother may not want Joe to have contact with him.

42.     The applicant’s younger son, William, is now aged eight.  Until the applicant was imprisoned in May 2004, William used to come and stay with him each weekend with William’s stepsister, Maylinh (who, the applicant says, thinks of him as her father).  He said he had a good relationship with William.  He has not seen him since he was imprisoned.  He understands that William has not been told that the applicant is in gaol, and the applicant does not want him to be told this.

43.     There is no suggestion in this matter that if the applicant’s visa is not reinstated, his children would return to Vietnam with the applicant.  On the contrary, they would almost certainly remain in Australia.  However, I find that in this event, it is doubtful that they would ever see their father again.  He would not be able to visit them in Australia, and their present circumstances are such that it is most unlikely that they would be able to visit their father in Vietnam, until they are old enough to earn a living and travel independently; but by then, it is likely that they would have lost touch with their father.

44.     On the facts before me, there is no existing relationship between the applicant and either of his sons.  It appears that there has never been such a relationship between the applicant and his elder son.  There was apparently previously a regular relationship with William which, from the applicant’s evidence and his reaction to certain questions in cross-examination, was clearly important to the applicant.

45.     There was also some evidence that William’s present circumstances are potentially precarious.  Mr Nguyen said that his partner, Cynthia, used to smoke heroin in front of William and was an alcoholic.  He said she now goes out with another man who belongs to a bikie gang and he treats her and the children badly.

46.     The applicant gave evidence that he wants to do something good with his life, and wants to go to TAFE and learn to be a builder.  He said he wants to look after his sons.  He said that if he gets out of Baxter and is able to remain in Australia, he would live with his sister, Hoa, for a while.  Hoa has provided a statement confirming that the applicant may live with her, and this was not challenged by counsel for the respondent.  The applicant further said that he would then propose to get a Housing Trust house, and go to the Family Court to “get his sons back” (exhibit A1, paragraph 23).

47.     In the present matter, there is no more than the prospect of the applicant establishing some relationship with his elder son, Joe, and re-establishing a relationship with his younger son, William.  Paragraph 2.16(b) of the Direction recognises that the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent conduct) would normally be given relatively less weight than a proven history of the relationship based on past conduct.  Notwithstanding the very limited contact which the applicant has had with his two children, I am inclined to think that the best interests of his children would be served if the applicant is able to remain in Australia.  At least he would then have the opportunity of establishing a satisfactory relationship with one or both of his children.

Other Considerations

48.     I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter.  In doing so, I take into account the preface to paragraph 2.17, which reads as follows:

“2.17    When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).

This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.

49.     The word “generally” in paragraph 2.17 is important in construing the structure of the Direction. I note that certain paragraphs of the predecessor of Direction No. 21, namely Direction No. 17, were held to impose an unlawful fetter on the wide discretion conferred on the respondent by s 501 of the Act, because they were interpreted as laying down as a general rule that, in no case, could a non-primary consideration telling against the exercise of the discretion under s 501 be given more weight than any of the three primary considerations, no matter how powerfully a particular non-primary consideration might favour allowing the non-citizen to be granted or to retain his or her visa (see Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268, and other authorities there discussed). (I also note that other members of the Federal Court have expressed a contrary view, namely that the primary considerations are so broadly expressed as not to exclude the consideration of virtually all relevant factors, including factors personal to the applicant : see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, and Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326). It appears likely that as a result of the decision in Jahnke and earlier decisions to the same effect, paragraph 2.17 of Direction No. 21 was amended to include the word “generally”, whereas the corresponding paragraph of the predecessor of the current Direction, namely Direction No. 17, omitted this word.  Further, the predecessor of paragraph 2.2 of Direction No. 21, namely paragraph 2.2 of Direction No. 17, also included the following sentence:

“Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.”

This sentence has been omitted from paragraph 2.2 of Direction No. 21, also apparently because of the decisions in Jahnke and earlier cases to the same effect.

50.     I have concluded, from the amended wording now included in the current Direction and from the views expressed in Jahnke (and also in Madafferi), that whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result.

51.     The first “other consideration” which is relevant is that referred to in paragraph 2.17(a), that is the extent of disruption to the non-citizen’s family, business and other ties to the Australian community.  I have already referred above to the likelihood that if the discretion is not exercised in favour of Mr Nguyen, it is likely that he will not see his sons again.  There is no suggestion that there would be any disruption to any business ties, and even though the applicant has spent virtually all of his adult life in Australia, there was no evidence before me of any other ties to the Australian community.

52.     Paragraph 2.17(d) of the Direction requires me to consider the family composition of the applicant’s family, both in Australia and overseas.  I have referred above to the position of his two sons.  As also mentioned above, the applicant’s parents, two other sisters and two brothers still live in Vietnam.  He has kept in touch with his parents and brothers and sisters in Vietnam up until the time when he went to gaol.  He said that if he has to go back to Vietnam he would stay with his parents.  This is therefore a matter where the applicant would have family support if his visa is not reinstated and he returns to Vietnam.

53.     Another relevant consideration is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction).  I have referred above to the applicant’s evidence that he has given up using heroin, and to the comparatively short length of time since his last offence.

54. The final consideration under this heading is that referred to in paragraph 2.17(k) of the Direction, namely that the applicant has been formally advised in the past by an officer of DIMIA about conduct which brought him within the cancellation provisions of s 501 of the Act. He was so formally advised by letters dated 24 April 2002, 7 March 2003 and 25 January 2005. Notwithstanding this, he committed a further serious offence after the first of these letters, namely driving under disqualification.

Conclusion

55.     I have had due regard to the importance placed by the Government on the three primary considerations in the Direction.  The cancellation of the applicant’s visa would assist in the protection of the Australian community.  The total number of offences committed by the applicant in Australia is significant, and he has been convicted of one offence involving illicit drugs.  However, the offence concerned was not a serious offence of its kind, and I accept that the applicant is no longer using heroin.  As his earlier criminal conduct probably occurred in order to fund his drug addiction, I think the risk of recidivism is reduced.  I am also inclined to think that having regard to the matters referred to above, the Australian community would be prepared to give the applicant one more chance to live a law-abiding life in Australia.  Further, the best interests of his children would probably be served by the applicant remaining in Australia, although I cannot give much weight to this consideration in view of the applicant’s very limited contact with his two children.  No matters of much significance arise from the other considerations referred to in the Direction.

56. After balancing all of the relevant considerations in the Direction, I have decided, but only after considerable hesitation, that it is appropriate in the present matter to exercise the discretion under s 501(2) of the Act in the applicant’s favour.

57.     I remain most concerned that the applicant has been given many opportunities to avoid imprisonment by entering into good behaviour bonds, but he has breached those bonds.  Further, as mentioned above, he offended again after he had been notified by DIMIA that the Minister was considering cancelling his visa because of his substantial criminal record in Australia.  The applicant should be formally warned that if he commits any future offence, a fresh assessment will be made with a view to considering cancelling his visa.  I cannot of course fetter the exercise of discretion by a future decision-maker.  However, in view of the nature and extent of the applicant’s criminal record and the concerns I have expressed in the present matter, the applicant should not expect to receive a favourable exercise of discretion if he should ever offend again.  I suggest that when his advisers inform him of the outcome of these proceedings, they should draw this comment to his attention, and emphasise its significance.

Decision

58.     I set aside the decision under review and remit the matter to the respondent for further consideration and direct that:

(a)the discretion under s 501(2) not to cancel the applicant’s visa be exercised in favour of the applicant; and

(b)the applicant be formally warned that if he is convicted of a further offence, a fresh assessment will be made with a view to considering cancelling his visa.

I certify that the 58 preceding paragraphs are
a true copy of the reasons for the decision
herein of Deputy President D G Jarvis

Signed:         .....................................................................................
           B Bills   Assistant

Date/s of Hearing  27 April 2005
Date of Decision  17 May 2005
Counsel for the Applicant         Mr P Charman

Solicitor for the Applicant          Ms T Birss, Refugee Advocacy Service of South Australia Inc

Counsel for the Respondent     Mr M Kennedy
Solicitor for the Respondent     Australian Government Solicitor