Phan and Minister for Immigration, Multicultural and Indigenous Affairs
[2002] AATA 750
•30 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 750
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/746
GENERAL ADMINISTRATIVE DIVISION )
Re VAN TOT PHAN
Applicant
And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr. D.W. Muller, Deputy President
Date2 September 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that: 1. At the time relevant to this review Van Tot Phan was a person of good character within the meaning of that term in section 13(1)(f) of the Australian Citizenship Act 1948; and 2. The matter be remitted to the Respondent for reconsideration in the light of this decision.
............Signed..................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship – whether applicant is of good character – criminal convictions for murder and assault – whether applicant's lifestyle and work records in the nine years since he left prison demonstrate that he is of good character
Australian Citizenship Act 1948: s.13(1)(f)
REASONS FOR DECISION
Mr. D.W. Muller, Deputy President
This is an application for review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs made on 25 July 2000 to refuse to grant a Certificate of Australian Citizenship to the applicant on the basis that he is not of good character within the meaning of that term in s. 13(1)(f) of the Australian Citizenship Act 1948.
Section 13(1) of the Act provides as follows:
"13. Grant of Australian citizenship
(1)Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a) the person is a permanent resident;
(b) the person has attained the age of 18 years;
(c) the person understands the nature of the application;(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f)the person is of good character;
(g)the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(i)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia."
There is no dispute about the following facts and the Tribunal finds:
(i)Van Tot Phan was born in Vietnam on 10 December 1965.
(ii)When he was 16 years of age he left Vietnam in a small boat with a group from his rural village. Some of the others in the small boat died in tragic circumstances while escaping from Vietnam.
(iii)He spent time in two refugee camps, the latter one for a period of fifteen months in difficult conditions.
(iv)He arrived in Sydney on 14 February 1984, aged 18 years.
(v)At the time of his arrival, he had two relatives in Australia. One was his uncle, his mother's brother, Tiep Bao Pho. The other was a maternal cousin who lived in Queensland.
(vi)He now has a brother, Van Hie Phan, living in Australia.
On 26 January 1986, when Mr. Phan was aged 20, he was involved in an altercation in which his uncle, Tiep Bao Pho, stabbed and killed two men and a third person was wounded. Mr. Phan was charged with two counts of murder. It was alleged that he aided his uncle. Mr. Phan was also charged with three counts of malicious wounding. It was alleged that he aided his uncle in relation to the two men who died and that he wounded the third person.
Mr. Phan was taken into custody on 18 February 1987.
Mr. Phan and his uncle were indicted on 6 June 1988. They had a trial which lasted 17 days. On 29 June 1988 the jury returned verdicts of guilty on all five counts in respect of Mr. Phan and his uncle.
On 2 September 1988, Mr. Phan was sentenced to 15 years in prison on each of the two murder convictions and eight years on each of the three malicious wounding convictions. A non parole period was set at 10 years. The sentences dated from 18 February 1987.
Mr. Phan was released from prison on 21 January 1993. In the nine years since being released from prison he has been in constant employment, he has married, he has bought a house and has led a trouble free life. The question for determination is whether enough time has elapsed since Mr. Phan left prison, to allow him to establish that he is now a person of good character.
The facts stated and the findings made by the trial judge during his sentencing remarks have been accepted by both parties to these proceedings. The remarks of the sentencing judge reveal the following details (among others) of the offences which led to the convictions and his findings in relation to Mr. Phan's degree of responsibility in the affair.
"The two prisoners, Tiep Bao Pho, and I shall refer to him as Bao; and Van Tot Phan, to whom I shall refer as Tot, were indicted on 6 June 1988 on five charges arising out of the stabbing of three men in the Belvedere Arcade, Cabramatta, on the afternoon of 26 January 1986. Two of the three men died from the wounds inflicted upon them.
On the afternoon of the stabbings which took place on Australia Day of 1986, the prisoner Tot, who was then about twenty years of age, was with a group of other young Vietnamese men at a table in a Vietnamese restaurant in Belvedere Arcade, Cabramatta. The three victims of the assault were at another table of Vietnamese men. Some other Crown witnesses were also at the deceaseds' table. A quarrel broke out between the occupants of the two tables which led to shouting and swearing in Vietnamese. At least some of those at the deceaseds' table, including the deceased had consumed a great deal of intoxicating liquor. It is likely that one man from the deceaseds' table went across to the table where the prisoner Tot and his young friends were at one stage in a challenging manner.
The proprietor and members of the proprietor's family ordered the men at both tables to leave. They arranged for those of the deceaseds' table to leave first, although two of those who were at the deceaseds' table tried unsuccessfully to come back into the restaurant to pursue their quarrel with those at the prisoner Tot's table.
I am satisfied that it was a threatening situation from the prisoners' point of view. At least some of those from the deceaseds' table remained in the arcade outside the café. They probably outnumbered the prisoners' group and represented a threat to the safety and safe exit of the prisoner Tot and those with him.
Mr Tot is the nephew of the prisoner Bao. Indeed, the prisoner Bao, is his closest relative in Australia. The prisoner Bao is now thirty-eight years of age. He lived about 500 metres from the restaurant. It is likely that he, that is Bao, was summoned by his nephew but this is not a necessary finding, nor one upon which I could rely. In all events he arrived upon the scene when a number of participants in the quarrel were still in the arcade in the vicinity of the restaurant. It was probably a tension-packed situation. After the prisoners spoke together they approached Mr So and the deceased, Mr Cuu. The older prisoner, Bao, swore and asked who wanted to fight his nephew. Mr So endeavoured to assure him that there was nothing to be concerned about and that it was only a quarrel among the young people. The prisoner Bao sought to talk to the restaurant owner to find out who wanted to fight his nephew. He was told by Mr So that nobody wanted to fight his nephew, that there were only small quarrels among the young people after some drinking.
At that stage Mr So turned his back partially to the two prisoners, telling the deceased Mr Cuu that there was nothing, "we should go home."
Mr So was then stabbed from behind by the prisoners, receiving two knife wounds, one to the back and one to the hip area. The prisoner then started knifing the deceased, Mr Cuu. The younger prisoner who had the smaller knife stabbed him in the face near the bridge of the nose. This was not a serious wound. The prisoner Bao, who had a larger knife, stabbed him fatally in the stomach. The prisoner Bao fatally stabbed the other decease Mr Linh, in the chest. The prisoner Tot, still armed with his knife, was standing by him. However, I note that the prisoner Tot did not inflict any wound on the deceased Mr Linh….. It was not his hand which struck any fatal blow to either of the deceased. ….. on the material properly given at the trial it is reasonable to make a finding that on the probabilities the prisoner Tot did feel threatened and apprehensive of violence from the other larger group.
The wounds to Mr So's back and hip were not serious wounds. He was treated in the doctor's surgery later that evening and the wounds were sutured.
Both the prisoners are of previous good character. Neither has any previous convictions. The elder prisoner Bao has a de facto wife. He is, as I have said, thirty-eight years of age, has a young family of two children. He has been in Australia since 1978, having come here from Vietnam. He became a naturalised Australian in 1982.
I also accept that the prisoner Bao was fond of his nephew Tot and no doubt felt protective of him.
The younger prisoner Tot is still only twenty-two years of age. He came to Australia in 1984 and has been on unemployment benefits. Favourable character evidence was called on his behalf from a Mr Truong, who had known him since 1980 and had left Vietnam in the same boat with him. They had also spent some time together in a camp in Thailand. The prisoner Tot had resided with Mr Truong and his family at Villawood from July 1984 until after the time of the subject crimes. Mr Truong described him as a nice young man.
The report of the social worker which has been tendered on behalf of Mr Tot contains some thoughtful material as to the background of the young prisoner Tot. As this material is in broad terms supported by Mr Truong who gave evidence, I feel that I can properly place some reliance on it to the benefit of the prisoner Tot. The social worker's observations from her quite extensive interviewing of the prisoner Tot confirmed his reliance upon his uncle, the older prisoner, Bao, approval psychologically and perhaps to some extent physically.
Mr. Tot, came out to this country under most difficult conditions. He had lived as a child in Vietnam in a small rural area. He had experienced all the disadvantages of those who live in that war-torn country. He would only have been sixteen when he left with Mr Truong in a small boat.
It is sufficient to say that the young prisoner, went through excruciatingly tragic circumstances in the boat trip. Others in the small boat died in circumstances that are unnecessary to relate. He was in two refugee camps, the latter one for a period of some fifteen months in conditions which were, to say the least, very spartan. He arrived in Sydney finally on 14 February 1984 as a lone eighteen-year-old man, having only two relatives in Australia, his co-accused, his uncle Mr Bao, who is his mother's brother; and a maternal cousin with whom he was residing in Queensland at the time of his arrest.
This background and association perhaps underlies his reliance upon the older prisoner, his uncle, Mr Bao. Also, in turn, it underlines the protective role of the uncle, Mr Bao, towards his young nephew. The Crimes Act provides that the sentence for murder is penal servitude for life unless it appears that the prisoners' culpability for the crime is significantly diminished by mitigating circumstances.
I deal first with the younger accused on this initial issue of whether I am satisfied on the probabilities that his culpability for the crime is significantly diminished by mitigating circumstances so as to make the mandatory sentence of life imprisonment not required and for the sentence to be at large. I think the accused's background is a factor to be taken into account with all the other circumstances.
Here there was a very young man with the background to which I have already referred who found himself in a position where he undoubtedly felt threatened and apprehensive for his physical safety at the hands of a larger group of men who were also older men. It is relevant that there is no suggestion that either of the fatal wounds was inflicted by him. It is in my view relevant that his participation along with his uncle was of a person who felt a deep sense of indebtedness to his co-offender.
I think on the whole of the circumstances that I can properly make the finding that the crime was significantly diminished by mitigating circumstances in respect to the murders of which he has been convicted so that the question of sentence is one that can be dealt with by way of determinate sentence.
I think it likely that in the circumstances that arose from the group there was an explosive situation for violence which boiled over and it was in that situation that the prisoner Bao administered the fatal wounds."During his time in prison, Mr. Phan conducted himself well. There is a lengthy prison report in the section 37 statement which indicates that Mr. Phan was regarded as a model prisoner. He undertook a course in English. He took pride in the work that he did in the prison workshop. In July 1992, he accepted the opportunity to take part in a release to work program.
On 21 January 1993, Mr. Phan was granted parole by the New South Wales Offenders Review Board. His supervision was transferred to an interstate Department of Corrective Services due to his relocation to that state. The Community Correctional Officer stated the following on 21 December 1999.
"Mr Phan's response to supervision was described by his supervising officer as exemplary. Case notes indicate that he was classified as a minimum risk, and needed no intervention. His criminal history indicated that no further offending occurred during the period of his supervision.
Mr Phan gained employment in September 1995, and he has maintained full-time employment since this date."Mr. Phan's parole expired on 14 December 1995.
Mr. Phan married Ngoc My Do in Vietnam on 26 July 1994. To enable his wife to emigrate to Australia, he signed an Assurance of Support for her. It was accepted and the period for the Assurance of Support ended without incident on 22 March 1999.
Mr. Phan and his wife purchased a home in joint names. They are currently paying off the mortgage. His wife attends English classes three days per week. She intends to apply to become an Australian citizen when her English has improved to an acceptable degree. Mr. Phan and his wife both wish to become Australian citizens. They regard Australia as their permanent home.
Mr. Phan first became interested in being a forklift operator during his period of release to work from prison in 1992. Upon being granted parole in 1993, he did a course which enabled him to become a certificated forklift operator. He then worked part-time for a trailer company. On 1 September 1995 he obtained full-time employment as a forklift operator with a large Australian company. He has held that job ever since. In the years since he started work for his current employer, Mr. Phan has taken no sick leave and he also refuses to take annual leave.
Mr. Phan does not socialise much. He does not belong to any clubs or organisations. He told the Tribunal that he is usually too tired after work to do much other than to relax , work around his house and sleep.
The Tribunal received a number of references and testimonials from Mr. Phan's employers, neighbours, doctors at his local medical centre, accountant and fellow workers. The material shows that Mr. Phan is:
(i)A model worker who is enthusiastic, helpful and well-liked by his bosses and co-workers.
(ii)A pleasant and co-operative neighbour who often puts himself out to help anyone wanting assistance.
(iii)An honest, hardworking family man who is doing his best to get ahead.
Mr. Phan conceded that he has not told his employers, co-workers, neighbours, doctors or accountant about his time in prison. He wanted to start a new life. He believed that he could not have successfully fitted back into the community if he had revealed that he had been in prison.
It was submitted on behalf of the respondent that the references submitted on behalf of Mr. Phan carry less weight than they appear to have at face value because the makers of the statements do not know about Mr. Phan's prison history. The submission is based on the obvious fact that referees can only give evidence of character from what they know about the person being reported on. The greater the knowledge, the greater the potential for a comprehensive reference. However, a glowing reference may be rendered worthless if the person being reported on has been engaged in some nefarious activity, unknown to the referee, during the period covered by the reference.
The Tribunal does not accept that in the circumstances of this review the references tendered in Mr. Phan's case should be devalued for the reason suggested by the respondent. This review is concerned about Mr. Phan's character in July 2000. The Tribunal is well aware of what he did in January 1986. The Tribunal needs to find out what he has been doing in the fourteen years since that time. During the period reported on by the referees, that is, in the time that they have known him, he has apparently done nothing behind their backs or unknown to them which would in any way influence their opinions. It is possible that if the referees had been told about the events of January 1986, they may have produced statements coloured by that knowledge which statements would have been less reliable in assessing Mr. Phan's current character than those that were in fact produced.
The Tribunal takes the view that the material placed before the Tribunal leads to the conclusion that before 26 January 1986, Mr. Phan would have been regarded as a person of good character. He was a quiet, unsophisticated young man. On that day he became caught up in a highly volatile situation, aggravated by his uncle, over which he lost control.
Since his trial and conviction, Mr. Phan has been a model prisoner, model release to work prisoner and model person on parole. For the approximately nine years since he left prison he has been a good worker, good husband, good neighbour and decent member of the community.
The Tribunal notes that in 1992, the Minister considered the question as to whether Mr. Phan should be deported. On 16 January 1992 a decision was made not to deport him. One of the factors given for not deporting Mr. Phan was that he was a first offender with a low risk of recidivism.
Mr. Phan is now 36 years of age. The Tribunal finds that his behaviour on 26 January 1986 was a "one-off" and "out of character".
The Tribunal finds that at the time relevant for this review, Mr. Phan was a person of good character.
The Tribunal sets aside the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Deputy President.
Signed: .....................................................................................
B. Hitchcock, Pers AsstDate/s of Hearing 23.7.01, 21.9.01
Date of Decision 2 September 2002
Solicitor for the Applicant Carew McKimmie
Solicitor for the Respondent Blake Dawson Waldron
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