Oskar Tedyjono and Minister for Immigration and Citizenship
[2012] AATA 437
•12 July 2012
[2012] AATA 437
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1602
Re
Oskar Tedyjono
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr M D Allen, Senior Member
Date 12 July 2012 Place Sydney The Tribunal affirms the decision under review.
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Mr M D Allen, Senior Member
Catchwords
IMMIGRATION AND CITIZENSHIP – visa cancellation – character test – substantial criminal record – application of Direction 41 under the Migration Act 1958 – seriousness and nature of conduct – risk of recidivism – real risk of harm to the Australian community outweighed the positive reports as to reformation by Probation and Parole Service – decision under review affirmed.
Legislation
Migration Act 1958 ss 499, 501
Cases
Minister for Immigration, Local Government and Ethnic Affairs v Batey [1993] FCA 75; (1993) 40 FCR 493
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81
R v Kane [1974] VicRp 90; [1974] VR 759Secondary Materials
Direction [No. 41] – Visa refusal and cancellation under section 501
REASONS FOR DECISION
Mr M D Allen, Senior Member
12 July 2012
On 18 April 2012 a delegate of the Respondent cancelled the Applicant’s student visa on the grounds that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (the Act).
Section 501(2) of the Act states:
(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.
Section 501(6) of the Act outlines the 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
…
(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
…
Otherwise, the person passes the character test
A person has a “substantial criminal record” under s 501(7)(c) of the Act if “the person has been sentenced to a term of imprisonment of 12 months or more”.
In exercising the discretion whether or not to cancel the Applicant’s visa, I am required, pursuant to s 499 of the Act to take into account any written directions by the Minister for Immigration and Citizenship as to the performance or exercise of my discretion.
At the time the Minister’s delegate made the decision in this matter, and currently, Ministerial Direction No. 41 regarding the refusal and cancellation of visas under s 501 of the Act is in force.
Direction No. 41 states as its objectives:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
Further general guidance is given in paragraph 5.2(2) of Direction No. 41, namely:
5.2 General Guidance
(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian Community; and
(b) the risk of that harm occurring.
Direction No. 41 then goes on to provide that in exercising the discretion whether or not to cancel a visa, the decision-maker shall take into account four primary considerations and seven other considerations.
In these proceedings it was not disputed by the Applicant that, given the nature of his offences and the sentence imposed, he did not pass the character test.
The primary considerations in exercising the discretion whether to cancel a visa or not as set out in Direction No. 41 are: the protection of the Australian community from serious criminal or other conduct; whether the person was a minor when they began living in Australia; the length of time the person has been ordinarily resident in Australia before engaging in criminal activity; and, any relevant international obligations.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 10.1 of Direction No. 41 reads:
10.1 Protection of the Australian Community
(1) Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b) the risk that the conduct may be repeated.
Paragraph 10.1.1 reads, inter alia:
10.1.1 The seriousness and nature of the conduct
(2) The following are examples of offences and conduct that are considered serious:
…
(f) the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs;
…
The Applicant pleaded guilty to three counts of supplying a prohibited drug and, on sentencing, asked that two other instances of trafficking in prohibited drugs be taken into account, together with two admissions of being in possession of cash being the proceeds of crime, in a total sum of $31,775.80.
In sentencing the Applicant, Geraghty DCJ made reference to the amount of drugs known to have been supplied by the Applicant to another drug dealer and the quantities found in his possession when police searched the premises occupied by him. Suffice to say the Applicant had traded considerable amounts of ecstasy, ice and cocaine to a person, named Phan, from 6 December 2006 to 30 January 2007. The Applicant had in his possession when arrested on 31 January 2007: 630.42 grams of ice; 109.2 grams of cocaine; 98.89 grams of ecstasy; and 349.9 grams of cannabis leaf. Clearly, the Applicant was engaged in the supply of significant amounts of prohibited drugs.
I reject submissions by the Applicant’s counsel that somehow the Applicant’s offences were less heinous because they did not involve violence. Trafficking in illicit drugs is specifically nominated as a “serious” offence in paragraph 10.1.1(2)(f) of Direction No. 41 and whereas an offence of violence is often committed as a result of a sudden loss of control, dealing illicit drugs is a considered and pre-mediated choice to take part in illegal activity for financial gain. An activity which it is well known can bring untold misery, cost and hardship both to the end user, their families and society as a whole.
The Applicant’s offences were considered by the sentencing judge as being within the mid-range of seriousness and the head sentence imposed, namely, seven years and six months reflects that, together with a 25 per cent discount for an early guilty plea.
Considering the material before me, I can see no reason to depart from the view of the facts taken by the sentencing judge:
He was from about December 2006, at least, until January 2007 engaged in an extensive supply of ecstasy, ice and cocaine. He used code language in order to communicate with his supplier. He had multiple mobile telephones, it would seem at least six. He had bags and weighing equipment. He had involved others lower down on the hierarchy, which in turn were his suppliers. He was supplying for financial gain but also to feed his habit, especially his intake of ice and his gambling habit. He had not been working from about May or June 2006 and his lifestyle was being supported by the sale of drugs. The period over which he supplied was from the middle of December 2006 to the end of January 2007, for a period of about six or seven weeks at least. …he was supplying significant amounts. It seems to me that both these matters must be placed at least within the mid-range…
As stated above there is no doubt that the Applicant’s offences were “serious” and this, plus the extent of his criminal activity, militate against the exercise of any discretion in his favour.
Risk the Conduct May be Repeated
The offences for which the Applicant was sentenced were his first contact with the criminal law since first arriving in Australia on a student visa in March 1999. In April 2000 he returned to Indonesia to work and save money in order to continue his studies. As a student he supported himself by working as an office cleaner and later as a barista and kitchen hand. In 2004 he obtained a Bachelor of Business Management from James Cook University (Sydney campus).
It was only in 2005 and after he had graduated with a business degree that the Applicant commenced using drugs. Originally he was introduced to cannabis at a friend’s house, and then he “tried a little bit of everything”. By mid-2006 he was a regular user of illicit drugs.
As a result of his addiction, the Applicant lost his employment as a restaurant worker and was forced to borrow money from friends. He also developed a gambling habit. Eventually he was pressured by his drug supplier, and he agreed to work for him in order to repay the debts he owed that supplier. Originally an “employee” of his supplier, he later began dealing in drugs on his own account.
Following his arrest, the Applicant was the subject of a report by the Probation and Parole Authority and by a psychologist. These reports were not before me but are referred to in the sentencing remarks of Geraghty DCJ.
Geraghty DCJ wrote:
… the probation and parole officer records that Tedyjono minimises his role blaming his supplier for his troubles … The probation and parole officer records that although the offender has expressed his sorrow for his offending it appeared to him that this related more to the negative effect it had upon his lifestyle.
As to the psychologist’s report His Honour noted:
She records that his attitude to the offence was one of regret and that he was able to recognise the consequences of his actions, including his sister not being able to complete her studies, his parents’ shame and increased anxiety. She records that he continues to feel ashamed of his actions and considers that he has brought shame on his family.
…The psychologist records that the offender’s incarceration has had a corrective impact upon his behaviour and he presents as genuinely motivated to become substance free and making a better adjustment to his adult responsibilities upon his release.
His Honour concluded his sentencing remarks by stating:
The mitigating circumstances which I need to consider are as follows. That the offender has no prior criminal record, that he has expressed some regret and that he has on his exit from the prison system good prospects of rehabilitation. He comes from a good family and he has got good education. There does not seem to be any aggravating circumstances other than the ones that I have already considered when coming to a conclusion this matter rests at the mid-range of offences of this kind.
Subsequent reports by the New South Wales Probation Parole Service have been favourable to the Applicant. In an Immigration Report dated 16 August 2011 a probation and parole officer said:
Assessment
Mr Tedyjono has presented throughout the interview process as open and willing to discuss his situation. It would appear that he was involved in a drug and gambling lifestyle at the time of his arrest and admitted to having been a “minder” and courier in exchange for free accommodation and discounts for personal use drugs. He would appear to have gained a salutary message regarding Australian law while incarcerated and plans to re-settle in the Australian community to commence a pro-social lifestyle with his educational qualifications.
A further comment to that report by a “Unit Leader” said:
Ms Wiseman’s assessment is noted. Mr Tedyjono easily settled into his sentence and has used his time in custody in a productive manner by working to support himself and undertaking both studies and treatment programs to address his offending behaviour.
A later report by the same probation and parole officer who prepared the 16 August 2011 report states, inter alia:
Since his incarceration Mr Tedyjono has admitted his role in the commission of offences and demonstrated considerable insight regarding his personal drug use and lifestyle. He was open when disclosing information about his finances regarding gambling and homelessness. He willingly discussed how his lifestyle resulted in his diminished ability to commence the career for which he was educated. In hindsight he believes that he was very naïve and is ashamed of the impact that his role in the offences has caused his family as well as his personal growth. Mr Tedyjono accepted responsibility for his actions and has not attributed blame to anyone else. He admitted that due to his drug and gambling lifestyle, his ability to make good decisions was greatly affected. Mr Tedyjono is clear about what he plans to do in the future in order to cope with stress rather than use drugs socially.
The report continued at page 3 to deal with his pre-release program stating:
In preparation for Pre-Release Programs and subsequent transfer to Silverwater gaol the inmate was supported at his last classification assessment on 14 October 2011 for progression to a 6.2 off the complex at the current gaol so that he could be assigned to Community Projects. The plan was that the inmate would apply for a C3 classification and if all reports were positive a further review in six months (April 2012) would be the pre-cursor for a gaol transfer. He commenced employment in this area on 13 February 2012. The plan has now been halted as the inmate has received correspondence from the Department of Immigration and Citizenship that he is to be deported upon his release. Due to this development the inmate has been returned to a C2 classification and is currently unemployed. …
The probation officer’s report concluded under the heading Summary and Recommendations:
It could not be said that this inmate has been idle whilst imprisoned for the past five years. Mr Tedyjono has demonstrated a willingness to address his criminogenic issues and build on his employment foundations evidenced by the high number of certificates listed above. While his offences in custody are of no real concern he would appear to have lost focus in January 2010 when he was found to have buprenorphine in his urine. For the majority of the time, Mr Tedyjono has set about preparing himself for a smooth transition to the community and is currently awaiting the appeal decision from the Department of Immigration and Citizenship. He has demonstrated a personal growth in his attitude towards the offences and would appear to have developed better problem solving skills. The extensive period of incarceration would appear to have had a salutary effect on this man.
Evidence was also given by a “Major” Brian Wilson who is a Salvation Army Chaplain for the correctional facility in which the Applicant is incarcerated. Major Wilson referred to the Applicant undertaking several positive lifestyle courses run by the Salvation Army whilst in prison and is satisfied that the Applicant is genuine when stating that he will never do anything again that will see him return to prison.
The question remains as to whether the Applicant would be likely to revert to using illicit drugs. In a report prepared for these proceedings relating to Australia’s non-refoulement obligations in relation to the Applicant, an officer of the Department of Immigration and Citizenship stated:
Further I find that the client has taken steps to manage his drug addiction. A submission by the client’s representative dated 12 August 2011 indicates that the client has “committed himself to addressing the issues which led to his arrest”, that he has “demonstrated sincere remorse for his past offending behaviour” and that he “has successfully participated in a number of programs which has actively dealt with his addictions, leading to a successful rehabilitation.” The submission also stated:
“Given his age, his motivation towards his continued abstinence from drugs and his goals to re-enter the workforce, we submit that the risk of Mr Tedjono (sic) re-offending is unlikely.”
On the basis of this submission I accept that the client recognises the consequences that arise from drug-use and that the risk of the client re-offending is ‘unlikely’.
Given that the assessment referred to above was confirmed by the author’s superiors, I can only conclude that the unlikelihood of the Applicant reverting to the use of illicit drugs is the considered opinion of the Respondent’s departmental officer and I take this opinion into account.
Different concepts apply to the Applicant’s dealing in illicit drugs. The Respondent submitted that upon discharge from custody the Applicant could well see that drug dealing would be his best source of income and provide the lifestyle to which he aspires.
I believe there is considerable force in the Respondent’s submissions. To date the Applicant has been in a controlled environment and not subjected to the pressures of finding employment and maintaining himself.
In stating this, I am aware that his aunt, Fenty Terihardjo, with whom he spent a large proportion of his formative years before his aunt and her family came to Australia has offered him accommodation upon release from prison but only until such time as he finds employment. She will however continue to offer assistance and support.
Darma Tedjaatmada is a long standing friend of the Applicant. The Applicant has been in contact with Mr Tedjaatmada since his incarceration and has obtained money from him in order to buy “groceries” while in gaol.
I do not place any weight on Mr Tedjaatmada’s evidence. In an earlier statement dated 5 May 2012, Mr Tedjaatmada said that in 2006 he and the Applicant had drifted apart as he was associating with people he did not approve of and was not comfortable to be associated with. At the time of the Applicant’s arrest, Mr Tedjaatmada had been staying in the Applicant’s unit for 10 days. Not only was he aware of the Applicant selling drugs, he also assisted the Applicant by attempting to rent a unit in his name using money provided by the Applicant and in which the Applicant intended to reside (and presumably continue his dealing).
To my mind there is a real risk in the sense that term is discussed in Minister for Immigration Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493 that the Applicant will revert to drug dealing upon his release from gaol.
Further, as was pointed out by Davies J, sitting as President of this Tribunal in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N81:
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to re-offend … and even if the risk of recidivism is not high the risk will strongly support deportation when the recidivism, if it does occur, may cause great harm. (Authorities omitted)
In the Applicant’s case he was convicted of dealing in illicit drugs at what the sentencing judge described as a mid-range level. He was a mid-level dealer obviously obtaining the drugs from an “upstream” supplier but selling to others. His arrest came as a result of a police investigation targeting a person named Phan to whom the Applicant was selling drugs. I am satisfied that if the Applicant were to re-offend it would occasion great harm to the Australian community, namely by being involved at a mid-range level in the distribution of illicit drugs.
WHETHER THE PERSON WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
The Applicant was not a minor when he first arrived in Australia.
LENGTH OF TIME THE PERSON HAS BEEN ORDINARILY RESIDENT IN AUSTRALIA
The Applicant first arrived in Australia on 12 March 1999. He then had a short period of absence namely between 14 April 2000 and 29 June 2001. He has not departed Australia since that date.
His offending began in or around May or June 2006 that is to say some five years after he returned to Australia, but only after he had completed his degree. I see no reason not to accept the Applicant’s evidence, that it was only after completing his degree that he was introduced to illicit drugs and began his downward spiral.
INTERNATIONAL OBLIGATIONS
The Applicant claimed that if he were returned to Indonesia he would be subject to persecution. His claims to invoke the non-refoulement obligations under the International Covenant on Civil and Political Rights or the Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment was based on several grounds namely:
(a)His Chinese ethnicity;
(b)That he is a Christian of Chinese ethnicity; and
(c)His conviction for supplying drugs.
Material was put before me as to the situation in Indonesia regarding minorities and regarding extra territorial convictions (see Exhibits A7, A8, R2 and R5). I find that whereas the Applicant may experience incidences of discrimination in Indonesia as a result of his ethnicity and/or his Christianity, he will not be the subject of persecution. As to his conviction for dealing in illicit drugs, I am satisfied, given the material in Exhibit R5, that he will not be subjected to double jeopardy based on his Australian convictions.
The Applicant’s case before me was based on the premise that he is now drug free and I have accepted that. Were he to revert to drug use in Indonesia his treatment by the Indonesian justice system might differ significantly from that of Australia’s, but I do not accept that he will be subjected to death, torture or to cruel, inhuman or degrading treatment as a consequence of inadequate drug support services.
Of course should he trade in illicit drugs in Indonesia then he will subject himself to the Indonesian penal system.
There are no children whose interests must be considered and the Applicant is not present in Australia on a humanitarian visa.
OTHER CONSIDERATIONS
Family Ties
The Applicant is married to a Korean national Eunsook Kang. The Applicant has not had face to face contact with Ms Kang since his arrest and his last spoken contact was in January 2010.
By letter dated 23 February 2012 Ms Kang was notified that her application for a Combined Partner Visa had been rejected. No appeal has been lodged against that rejection and Ms Kang is currently unlawfully in Australia.
I am satisfied that the union between the Applicant and Ms Kang can no longer be regarded as a continuing one, and that the former partnership with Ms Kang does not militate against the cancellation of the Applicant’s visa.
The Applicant does have significant family figures in Australia namely his aunt, Ms Terihardjo, and his cousins, Willy and Yoppy. Ms Terihardjo has two other children but Willy and Yoppy were the closest to the Applicant. These people will feel sorrow and regret if the Applicant is removed from Australia but during the time the Applicant has been incarcerated they have continued with their own lives and the Applicant’s removal will have no real effect on them.
The Applicant’s age does not militate against cancellation of his visa. He is relatively young, being 32 years of age, and he is in good health. He has a university degree from an Australian university and his parents and sister currently reside in Indonesia although the parents seem to divide their time between Indonesia and Malaysia.
The Applicant spent his childhood and adolescence in Indonesia and consequently he will have no real hardship in readjusting to life in Indonesia.
Of the matters that are referred to as Other Considerations in Direction No. 41, none militate against the cancellation of the Applicant’s visa. As the offences for which he was convicted were his first offences, he had no previous warnings regarding visa cancellation.
CONCLUSION
I have had considerable difficulty in reaching a conclusion in this matter. The two reports by the Probation and Parole Service are very positive regarding the Applicant’s rehabilitation and the unlikelihood of his re-offending. The prison chaplain is supportive and he did state not every prisoner who seeks him as a referee is accommodated.
The Probation and Parole reports concerning the Applicant are, as stated above, positive, but they seek to address different concepts to those I have to consider. Those reports do consider the Applicant’s rehabilitation and his eligibility to be released into the community, albeit subject to supervision, I must consider whether there is a real risk that the offender will re-offend and if he did re-offend what damage that re-offending would cause to the Australian community.
To my mind, despite the Applicant’s efforts at rehabilitation, I am satisfied that there exists a real risk that he will revert to drug dealing, and should he do so that this will cause harm to the Australian community. The potential of harm in my view outweighs all other factors and the decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member.
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Associate
Dated 12 July 2012
Date(s) of hearing 28 and 29 June 2012 Counsel for the Applicant Christopher Peadon Solicitors for the Applicant Luke Geary, Salvos Legal Humanitarian Solicitors for the Respondent Lenny Leerdam & Michelle Stone, DLA Piper Australia
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