Phung and Minister for Immigration and Citizenship
[2007] AATA 1319
•15 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1319
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700047
GENERAL ADMINISTRATIVE DIVISION ) Re CAN SO PHUNG Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date15 May 2007
PlaceAdelaide
Decision The decision under review is affirmed.
D G Jarvis
(Signed)Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL
No: S 200700047
General Administrative Division
Re: Can Phung
Applicant
And: Minister for Immigration & Citizenship
Respondent
DIRECTION [2007] AATA 1319
TRIBUNAL: Deputy President D G Jarvis
DATE: 9 August 2007
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for decision in this matter by amending in paragraph 43 the reference to Selway J to Besanko J.
……………………………………..
D G Jarvis
(Deputy President)
CATCHWORDS
IMMIGRATION – Return Residence (Class BB) visa, subclass 155 (Five Year resident return) – discretion to cancel visa where applicant fails character test – substantial criminal record – Ministerial Direction No. 21 – primary and other considerations – applicant had difficult childhood and lack of education in Vietnam – applicant accepted into Australia as a refugee – applicant became addicted to heroin – evidence of support from family and employer – held that tribunal can have regard to information elicited in cross-examination or in amplification of material previously provided notwithstanding that it had not been given to the respondent at least 2 business days before the hearing – meaning of “non-disclosable information” – extent to which tribunal should consider merits of potential action for breach of confidence – held that certain information not to be non-disclosable since it had previously been disclosed to the applicant – weight to be attached to non-disclosable information – decision under review affirmed.
Migration Act (Cth) 1958, ss 500(6F), 500(6H) and 501(2)
Lam v Minister for Immigration and Multicultural Affairs [2006] FCAFC 184
Peters v Administrative Appeals Tribunal (2005) 144 FCR 417
Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20
Re Afoa and Minister for Immigration and Citizenship [1999] AATA 82
Re Gardiner and Human Rights and Equal Opportunity Commission and Anor (1996) 41 ALD 424
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Kamminga and Australian National University (1992) 26 ALD 585
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202
Re Suardana and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 830
Re Western Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission (1997) 47 ALD 464
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 580
VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 74 ALD 96
REASONS FOR DECISION
15 May 2007 Deputy President D G Jarvis 1. The applicant, Can So Phung, came to Australia from Indonesia as a refugee in April 1985, having fled from Vietnam with an older brother about a year earlier.
2. On 6 February 2007 a delegate of the Minister for Immigration and Citizenship decided to cancel the applicant’s visa on the grounds that he did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). Mr Phung had been the holder of a Return Residence Class BB visa, subclass 155 (Five Year Resident return). The delegate also decided to exercise the discretion pursuant to s 501(2) of the Act to cancel the visa. Mr Phung has applied to this tribunal for review of the delegate’s decision.
Issue Before the Tribunal
3. Subsection 501(6) provides for circumstances where a person does not pass the character test for the purposes of s 501. Under paragraph (a) of subsection 501(6), a person does not pass the character test if he or she has a substantial criminal record, and under subsection 501(7), 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. This subsection refers to the sentence imposed, even if the time actually spent by the person in prison is less than twelve months: Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 580 at [27]. The applicant was sentenced to imprisonment for terms of twelve months or more on 3 December 1990, 7 November 1996 and 5 December 2003. It was conceded at the outset of the hearing that he does not pass the character test.
4. The question then arises as to whether to exercise the discretion conferred by s 501(2) of the Act to cancel a visa. That is the only issue before the tribunal.
Background Evidence
5. The evidence of the applicant and the documentary material before me was uncontested insofar as it related to certain background facts, and I make the following findings.
6. The applicant is aged 39. His father and mother migrated to Australia from Vietnam in 1991. He also has four brothers and a sister who have migrated to Australia. Those members of his family all live in Adelaide. He also has two older sisters who still live in Vietnam.
7. When Mr Phung was about ten or eleven years old, his mother took him and a younger brother to live with their grandmother in the countryside, as the rest of the family who lived in a city did not have enough food. He had been very attached to his mother. The applicant, his grandmother and his brother worked in the garden of his grandmother’s home and took produce to the rest of the family. He attended school until Year 5, but left so that he could spend more time working in the garden.
8. When he was fifteen one of his brothers helped the applicant to escape from South Vietnam. They left Vietnam because they were running away from the communists who had overtaken South Vietnam, where they lived. He and his brother were taken to Indonesia, where he was placed in a refugee camp as an illegal entrant. He remained there for about one year, and left on a fishing boat, his departure having been arranged by his brother. He was accepted into Australia as a refugee.
9. After arriving in Adelaide he studied English as a second language for six months, and attended a high school for a short time. However, he had difficulties with concentration and could not manage the English language. He became involved with other Vietnamese boys at school, and they introduced him to alcohol and drugs.
10. The applicant left school and lived apart from his family, taking to alcohol and drugs and leading an aimless life with the other boys. He continued to drink excessively, and whilst he had some part-time work, he committed various offences and spent time in prison, commencing in 1992.
11. The applicant has a large number of convictions, as set out in the schedule to these reasons.
12. It will be seen that three of the applicant’s convictions resulted in terms of imprisonment of twelve months or more. The first of those terms was suspended, but was later activated because the applicant breached a bond to be of good behaviour for a period of two years. Three other convictions resulted in shorter terms of imprisonment.
Legislation
13. 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.
14. 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
15. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion 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 enter or 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.
16. 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
17. 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.
18. 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). Paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. The examples include the importation and distribution of illicit drugs. The Direction also records that offences involving illicit drugs of dependency or addiction, such as heroin, are of particular concern to the Government and the community. Further examples of an offence considered by the Government to be very serious include serious theft and organised criminal activity resulting in a conviction in Australia.
19. The applicant’s last significant conviction was for knowingly being concerned in the importation of a prohibited import, namely heroin. According to the remarks of the sentencing Judge, the applicant’s role in the importation was to assist a courier to organise the purchase of the heroin in Vietnam and to pick him up at Adelaide Airport. Other people were also involved in the importation but the applicant did not divulge the identity of the other people to the police or to the Court. In his evidence before me, he admitted that there were about ten people living in Adelaide who were involved. The courier whom the applicant met at the airport was carrying 53.2 grams of heroin with a value in the vicinity of $150,000.
20. Earlier offences in the category regarded by the Government as very serious include a conviction on 23 October 1992 for possessing a controlled substance for supply, a conviction on 7 November 1996 of possessing a controlled substance for supply, and convictions for larceny on 3 December 1990 and 27 October 1994. According to the applicant’s statement in the G documents (exhibit A1, at page 67) the offence committed in 1995 of possessing a controlled substance for supply was committed when he was collecting heroin for a friend, and the offence committed in 1992 of possessing a controlled substance for supply entailed bringing a small amount of cannabis into Yatala Labour Prison for a friend. It appears that at the time of the 1995 offence he was also driving under the influence of liquor without a licence. I was not given any information as to the circumstances of the larceny offences, and I therefore do not know whether those offences involved serious theft within the meaning of paragraph 2.6(l) of the Direction.
21. Under paragraph 2.7 of the Direction, I must take into account the sentence imposed for the relevant crime(s) (not the term of imprisonment actually served: Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 138 FCR 475 at [13]). In this context it is relevant to take into account any non-parole periods determined, and whether any sentences were suspended, as these matters provide some indication as to how serious the sentencing courts regarded the offences concerned. This information is included in the Schedule to these reasons, and I have taken these matters into account.
22. By virtue of paragraph 2.7(a) of the Direction, I must also have due regard to the extent of the non-citizen’s criminal record, including the number and nature of the offences, the time between offences, and the time that has elapsed since the most recent offence. Under paragraph 2.7(b), I must consider the repugnance of the crime.
23. It can be seen from the information set out in the schedule to these reasons, that the applicant has a very serious record, and that he has offended frequently since his first offence in 1989.
24. The conduct that resulted in the applicant’s most recent conviction, namely driving under disqualification, occurred in July 2003, and a period of almost four years has elapsed since then. However, the applicant has been in prison or in immigration detention for more than three years of that period.
25. Finally, under paragraph 2.8(a) of the Direction, I must take into account any mitigating factors. When he was convicted for the last offence for which he was imprisoned, the sentencing Judge recorded that the applicant was a heroin user, and had been so for a long time, and that his reward for his part in the importation of the heroin was to receive some heroin for his own use. However, the Judge did not accept that the applicant’s involvement in the importation offence was towards the lower end of the scale of culpability. The sentencing Judge also recorded, and presumably accepted, that the applicant’s counsel had told him that his previous drug-related offending had been due to his heroin addiction. It is also appropriate to refer in the context of mitigating factors to the applicant’s disrupted childhood and education, the difficulties he encountered when he arrived in Australia, initially without the guidance of his parents, and the fact that he fell into the wrong company when he was at a young age and in vulnerable circumstances.
26. 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.
27. The applicant admitted in evidence that he started taking drugs in 1991 or 1992, and he explained his offending on the basis that he was addicted to heroin. In the past the applicant has not been deterred by the increasing terms of imprisonment imposed on him as a result of his continued offending. He has associated with other drug users, and there is a risk that he will renew his association with those people, or that they will seek him out.
28. Exhibit R6 is an extract relating to the results of urine tests conducted during the applicant’s incarceration from 2003 to 2006 to determine whether he was using drugs. This extract reveals that the applicant was subjected to tests on twelve occasions between 14 May 2005 and 10 August 2006, and returned positive results on four occasions, once for cannabis, once for heroin, and twice for buprenorphine. He admitted that he received these drugs illegally, from other prisoners. The last positive result, which detected buprenorphine, followed a test on 3 February 2006. The applicant agreed that some of the tests were conducted without prior warning, although others were tests that he had volunteered to undergo so that he could be transferred to a more secure part of Mobilong Prison. He also claimed that he underwent the last two tests that detected buprenorphine in the expectation that they would return a positive result, in order to punish himself.
29. In his written statement dated 3 December 2006 the applicant says that since he last took a drug when he was in prison and when it was offered to him he has not taken any drugs, “not even” when he was allowed to go out of prison either on work release or unaccompanied leave (exhibit A1, page 67). He was apparently permitted to leave prison for these purposes towards the end of his last three-year prison sentence. When he was released from prison on 4 December 2006, the applicant worked for his brother’s company, CP Potts, for about two and a half months, and after that he worked with two of his brothers at Jamieson Truck Sales for about two weeks before he was taken into immigration detention. He said that during this time he lived at a home owned and occupied by one of his brothers. His parents also live there.
30. The applicant said that the reasons he has not taken drugs since the last occasion, when he was in prison, are that he had to do the right thing or he would not get anywhere with his life, and he did not want to disappoint his family who had always helped him. He said that if he is allowed to remain in Australia he would initially live with his parents, and when he can establish himself financially he would like to rent a place of his own close to his parents so that he can keep an eye on them and help them. He also said that since he was imprisoned in 2003 he has kept away from his old friends who were using drugs, and he intends to stay away from them, because if he does not this would lead to his taking drugs again. He now understands that he is facing possible deportation. He said that if he is given one more chance to stay in Australia he will take it and show the Australian people that he can behave himself because he really wants to live in Australia.
31. The applicant’s evidence as to the last time he took drugs was not contradicted (save that this was in February 2006, and not in 2005 as he had mistakenly recalled, although I do not regard this discrepancy as material). However, exhibit R6 and the applicant’s evidence as to this indicates that he continued to take drugs when he was in prison, and that he had obtained those drubs illegally. This evidence indicates that the risk of recidivism is not insignificant.
32. Dr Marie O’Neill, a psychologist, interviewed Mr Phung and provided a report dated 17 March 2007 (exhibit A3). By reference to a personality assessment inventory, Dr O’Neill concluded that the applicant has the classic symptoms of post-traumatic stress disorder, with multiple anxiety disorders and broad psychological impairment; that he is guilt-ridden; and he finds it difficult to control his anger, and is hypervigilent. Dr O’Neill also referred, in the context of the risk of recidivism, to the applicant’s concern about being deported from Australia. She thought that this would have a much stronger deterrent effect on his re-offending than the threat of imprisonment, since he had been imprisoned before and realised that he would be released into the community after serving his term.
33. Counsel for the respondent, Mr d’Assumpcao, submitted that I should not have regard to this last aspect of Dr O’Neill’s evidence, because it is not contained in her report, and under s 500(6H) of the Act, the tribunal must not have regard to any information presented orally in support of a non-citizen’s case unless the information was set out in a written statement given to the Minister at least two business days before the hearing. However, the above evidence in relation to the risk of recidivism was elicited from Dr O’Neill in cross-examination, and thus could not be said to be information presented orally in support of an applicant’s case: Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202 at [42]. Further, Dr O’Neill’s evidence could also be characterised as evidence amplifying the applicant’s previously stated concern about the prospect of deportation, to which I have referred above. I consider that s 500(6H) does not prevent the tribunal having regard to evidence of that nature: see SAAC at [37].
34. I also take into account that, although his family were apparently unable to prevent his past offending, the applicant comes from a close family who will provide him with strong support if he is not deported from Australia. Further, he has the opportunity of working with his two brothers at Jamieson Truck Sales. I accept the evidence of the proprietor of that business, Mr Peter Gilsmore, who said that the applicant’s brothers had worked for his company for approximately 25 years in total and were his two most highly skilled and valued workers. The applicant had previously worked for the company for an earlier period of about two years, and Mr Gilsmore also spoke highly of the applicant’s work.
35. The strong support from the applicant’s immediate family and the availability of employment with an employer who clearly values his skills would clearly assist his rehabilitation. If his visa is not cancelled and he is released from immigration detention, he would still be subject to the conditions of his parole order for about eighteen months, until 4 December 2008. The parole order that the applicant be released from prison includes a number of conditions that are potentially relevant to the issues raised in the present proceedings. Those conditions include the following:
· to be supervised by a parole officer, and to obey all his or her reasonable directions and to report to the parole officer as requested;
· not to unlawfully use, possess or sell any drug or narcotic preparation nor to associate with anyone who unlawfully possesses, uses or sells a drug or narcotic preparation;
· to submit to urinalysis, if directed by his parole officer, with the results of the analysis being made available to the parole officer and relevant authorities;
· (if his parole officer thinks it necessary) to attend drug counselling; and
· not to leave South Australia or Australia without prior permission of relevant authorities.
If the applicant were to commit any offence or breach of the conditions of the parole order, it could be revoked and he could be returned to prison. There would therefore be a real incentive for him to comply with the parole conditions.
36. The only evidence before me relevant to whether the applicant would make a positive contribution to the community is the evidence from the applicant that he will assist in looking after his elderly parents, and the evidence of Mr Gilsmore of Jamieson Truck Sales as to the difficulty he has in recruiting employees with the particular skills of the applicant.
37. Taking into account all of the above matters, including in particular the support that the applicant would be likely to receive from his brothers, parents and remaining family members, and his prospective employer, the potential involvement of his parole officer until 4 December 2008, and his realisation that re-offending would almost certainly result in his deportation, the risk of recidivism has been reduced. Nevertheless, the applicant has a history of regular and frequent offending, which continued after his most serious offence entailing the importation of heroin and before his conviction for that offence, and he apparently continued to use drugs intermittently during his incarceration. In my assessment there remains a moderate risk of recidivism.
38. General Deterrence The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage similar conduct by other persons (paragraph 2.5(c)). Of course, any deterrence would depend on the publicity given to any cancellation of a visa. From my observation, in recent times some degree of publicity has been given in the media to the outcome of proceedings of this sort.
39. 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 enable the Department of Immigration and Citizenship to point to an established precedent. I note that statistical information as to the number of visa cancellations and refusal decisions is included in the 2005-2006 annual report of the Department of Immigration and Multicultural Affairs (DIMA) (see the extract in exhibit R3). Counsel for the respondent submitted that further publicity was given in the Ombudsman’s report of February 2006 on DIMA’s administration of s 501 of the Act as it applies to long term residents (exhibit R4). However, evidence as to the nature of that publicity was not tendered, and counsel did not refer to the particular parts of the report which might have been relevant to the issue of deterrence (as opposed to other issues raised in the report). Of course, the Department could use other means to give publicity to cases where visas have been cancelled on character grounds where non-citizens fail the character test in order to reinforce the view which the Government has as to the seriousness of crimes involving the importation or distribution of illicit drugs of dependency or addiction, and the Government’s policy of taking reasonable steps to protect the Australian community from such crimes. In this regard, I note the reference by Deputy President Walker in Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at [33] to recent criminology and social science research which indicates that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed.
40. I consider that the “General Deterrence” consideration weighs in favour of confirming the cancellation of the visa, but in the absence of evidence that that result would have a significant general deterrent effect, I attach little weight to this aspect.
41. Having had regard to all of the factors relevant to the first primary consideration, I consider that this consideration would indicate that the visa should be cancelled.
Second Primary Consideration – Expectations of the Australian Community
42. 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 by Deputy President Forrest in Re Afoa and Minister for Immigration and Citizenship [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.”
43. I refer also to 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. It is also relevant to take into account that the applicant has already been punished by the Courts by which he was convicted, and his visa should not be cancelled in order to impose some further form of punishment: Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20 at 43, per Selway J at first instance; Re Suardana and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 830 at 832 – 833.
44. I also take into account the matters to which I referred in paragraph 25 above in the context of mitigating factors, and the matters to which I referred in paragraph 37 above as factors reducing the risk of recidivism. It is also relevant that he is part of a large close family who (with the exception of two sisters and the child of his eldest sister) live in Adelaide. Further, the applicant himself has now lived in Australia for more than twenty two years. I think that many in the Australian community would be disposed to think that the applicant should be allowed one last chance to reform.
45. As against the above considerations, the Australian community can reasonably expect any non-citizens to be law-abiding citizens. Mr d’Assumpcao drew attention to the frequency of the applicant’s offending, and the serious nature of many of the offences. He referred to the length of time for which the applicant had been involved in prison and with the Courts system, and pointed out that since Australia accepted the applicant as a refugee, he has been a burden to the community. He also referred to the fact that the applicant has in the past breached the conditions of his parole and has not availed himself of opportunities to reform his conduct. He submitted that in all of the circumstances, the Australian community would expect to be protected against offending of the kind committed by the applicant, and that the applicant’s visa should be cancelled.
46. Taking all of the above matters into account, I think that on balance this second primary consideration tends to point, though not strongly, to the cancellation of the visa.
Third Primary Consideration – Best Interests of a Child or Children
47. The third primary consideration arises in all cases involving a parental or other close relationship between a child or children and the non-citizen, and requires the best interests of the child or children to be considered. The applicant has no children. This third primary consideration will therefore only be relevant if there exists a close relationship between some other child or children: Lam v Minister for Immigration and Multicultural Affairs [2006] FCAFC 184 at [22]. Under paragraph 2.13 of the Direction, this consideration only applies if the child with whom the close relationship exists is or would be under eighteen at the time when the decision is intended to come into effect.
48. There was some evidence before me as to the relationship between Mr Phung and his nieces and nephews. I agree with Mr d’Assumpcao that the evidence before me does not indicate that a close relationship exists between the applicant and any of his nieces or nephews who are under eighteen years of age, and I note that counsel for the applicant, Ms Nunan, properly conceded this. This consideration accordingly is not one that weighs against the cancellation of the applicant’s visa.
Other Considerations
49. 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. I will first consider such of the eleven examples as are relevant to the present matter, and then address certain further issues that arise from the evidence before me.
50. Whilst the Direction 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; and in particular, one or more of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant that result: Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505 at [53] – [54].
51. The first “other consideration” which is relevant is that referred to in paragraph 2.17(a) of the Direction, namely the extent of disruption to the non-citizen’s family, business and other ties to the Australian community. It is also appropriate to refer at this point to paragraph 2.17(c) of the Direction. This refers to the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether those family members would be able to travel overseas to visit the non-citizen, the nature of the relationship between that person and those family members, and whether they are in some way dependent on the non-citizen for support which cannot be provided elsewhere.
52. I have referred above to the applicant’s large close family. If the applicant were to be deported, he would not be able to look after his elderly parents, although it is likely that other members of the family (including the son who owns the house where they live) would be able to do so. Further, the applicant’s offending is such that it is unlikely that he would in the past have looked after his parents. More relevant is that if he were deported, it is unlikely that his parents would be able to travel to Vietnam to visit him. I refer in this regard to the letter dated 5 December 2006 from Dr Phuok Le Cong, who considers that in view of the parents’ medical condition, they are at risk of having a stroke during any flight to Vietnam (exhibit A1, page 112). Ms Nunan submitted that the parents and other family members would not be able to afford to travel to Vietnam to visit the applicant, but there is no evidence as to the financial position of the relevant family members, and I am not prepared to infer this.
53. There is no evidence that the applicant has any business or other ties to the Australian community.
54. Paragraph 2.17(b) of the Direction refers to “genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible Vietnamese citizen”. The applicant is not currently in a marriage or de facto relationship and this paragraph is not relevant.
55. Paragraph 2.17(d) of the Direction requires me to consider the composition of the applicant’s family, both in Australia and overseas. I have already referred to this.
56. Another relevant consideration is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction). As mentioned above, the applicant admitted using drugs when he was in prison, but maintains that he has not used drugs since then. He apparently was of good behaviour when he was working on day release and on unaccompanied leave during the latter part of his prison term (see the Minute from the Adelaide Pre-Release Centre of 28 July 2006, exhibit A1, page 131), and there is no evidence that he committed any offence during the period from 4 December 2006 to 21 February 2007, when he was on parole after his release from prison and before he was taken in to immigration detention. He also completed victim awareness and anger management classes while he was in prison. I refer generally in this regard to paragraphs 29 to 35 above.
57. The final relevant 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 DIMA about conduct which brought him within the cancellation provisions of s 501 of the Act. It was not suggested that the applicant received any warning from the Department prior to the conduct which gave rise to the cancellation of his visa, and there is also no evidence that he received any such warning from the Courts that recorded his various convictions.
58. Other issues relevant to paragraph 2.17 of the Direction : The applicant is not unfamiliar with Vietnam, having returned to that country on three occasions, for periods of about three months commencing in mid-October 1993, two months commencing in October 1998, and one month commencing in June 2000. He speaks Vietnamese. He has two older sisters living in Vietnam and has stayed with them, and also in hotels there. He has no spouse or child in Australia.
59. He no longer fears the communist regime in Vietnam, and in any event, for reasons referred to below, has now lost his status as a refugee.
60. I also take into account in the applicant’s favour the matters referred to in paragraphs 25, 29, 30, 32, 34 and 35 above, and his explanation that his past offending was the result of his heroin addiction.
61. Evidence was given that the applicant suffered a serious head injury in about June 1997 when he was in Mobilong Prison. In her written report, Dr O’Neill thought that he showed signs of having suffered neurological damage as a result of this assault. However, she acknowledged that she does not have medical qualifications, and when her evidence was tested in cross-examination, I found it to be unconvincing. There is accordingly no acceptable evidence before me that the applicant is suffering from any neurological damage. Ms Nunan conceded this, and also acknowledged that (contrary to an earlier assertion) the applicant did not now propose to take any legal action against the State of South Australia in consequence of this assault. I note that the applicant’s account as to the reasons for this assault appear to differ from certain reports prepared by officers of the Department for Correctional Services. However, those officers were not called as witnesses, and I am not in a position to determine which version of events is correct. Further, I am not prepared to draw any adverse inference as to the credibility of the applicant’s evidence on the basis of the material before me as to this episode.
62. Although there was no evidence before me to the effect that the applicant would engage in any course of treatment to assist with his rehabilitation, it is clear, as mentioned above, that he still has some eighteen months to serve of his parole, and as I have said above, it is I think likely that the conditions of his parole order would potentially assist his rehabilitation, at least for that period.
63. I also note that in her report, Dr O’Neill made a series of suggestions that would potentially assist the applicant, and these could presumably be given effect to in, and are not inconsistent with, the conditions of his parole, although there was no evidence of any proposals that the applicant should be treated for the conditions of post-traumatic stress disorder or anxiety and depression to which Dr O’Neill refers. Nevertheless, there would presumably be some prospect of psychiatric treatment for those conditions if the applicant remains in Australia. As against this, he expressed concern about his ability to get psychological treatment if he were to be deported to Vietnam.
64. Overall, I think that the matters referred to under the heading “Other Considerations” in Direction No. 21 weigh against the cancellation of the visa, but having regard in particular to the matters to which I referred in paragraphs 58 and 59 above, not strongly.
Other International Obligations
65. Paragraphs 2.22 and 2.23 of the Direction are potentially relevant. They refer to the Convention and the Protocol Relating to the Status of Refugees (the “Convention”). Article 1C(5) of the Convention provides in effect that the Convention ceases to apply to a person who has been determined to be a refugee if that person can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality. Paragraph 125 of the Handbook on Procedures and Criteria for Determining Refugee Status published by the United Nations High Commissioner for Refugees indicates that generally, where a refugee visits his former home country with a travel document issued by his country of residence, he will generally be considered to have re-availed himself of the protection of his former home country and to have lost his refugee status under Article 1C(5). The applicant has visited Vietnam on three occasions. Further, he said that he no longer fears persecution if he were to be returned to Vietnam.
66. None of the other paragraphs of the Direction in relation to Australia’s other international obligations are relevant in this case, and it has not been suggested that if the applicant is returned to Vietnam, he would be placed in a situation where relevant rights under international obligations would be violated.
Non-Disclosable Information
67. Section 500(6F)(c) of the Act in effect requires the respondent, on the hearing of an application for review of a decision to refuse or cancel a visa where the non-citizen is in a migration zone, to lodge with the tribunal relevant documents in the possession or under the control of the Minister that contain non-disclosable information. Section 500(6F)(d) provides in effect that the tribunal may have regard to non-disclosable information lodged under s 500(6F)(c) for the purpose of reviewing the decision, but must not disclose that non-disclosable information to the applicant. The expression “non-disclosable information” is defined in s 5 of the Act relevantly to mean information or matter:
“(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence,”
and includes “any document containing, or any record of, such information or matter”.
68. It is clear from s 500(6F)(d) that Parliament intended to override the obligation that would otherwise have required the tribunal to afford procedural fairness to applicants by affording them a reasonable opportunity to comment on the information in question, and this tribunal must give effect to that clear legislative intent: see VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 74 ALD 96 at [46].
69. I became concerned that certain of the information included in exhibit R1, which was asserted to be non-disclosable information, lacked the necessary element of confidentiality. I have accordingly found it necessary to consider how the tribunal should proceed in such circumstances.
70. I consider that where in accordance with s 500(6F) of the Act the respondent lodges with the tribunal any document or part of a document that is claimed to contain non-disclosable information, it will first be necessary for the tribunal, as early in the proceedings as possible, to decide whether the document or part of it falls within the definition of “non-disclosable information” in s 5 of the Act. Where this is not clear from the nature of the document or other surrounding circumstances, it may be necessary for the tribunal to consider further material relevant to any issues raised by that definition. I note that this approach was taken in Re Kamminga and Australian National University (1992) 26 ALD 585, where the tribunal (presided over by President O’Connor J) considered whether disclosure of information pursuant to a request under the Freedom of Information Act 1982 (Cth) should be refused under s 45 of that Act. At the time of the tribunal’s decision the terms of that section were virtually identical to paragraph (c) of the definition in the Migration Act of “non-disclosable information.” It provided that a “document is an exempt document if its disclosure would found an action, by a person other than the Commonwealth, for breach of confidence”. The tribunal identified and examined the criteria that must be established by a plaintiff in order to make out a case for protection in equity of allegedly confidential information, and received evidence relevant to certain of those criteria.
71. In the present matter, one of the documents included in exhibit R1 and asserted to be non-disclosable information contained information relating to the results of urine testing carried out during the applicant’s incarceration from 2003 to 2006 to determine whether he was using drugs. Counsel for the respondent pointed out that the relevant document had been provided to the Department of Immigration and Citizenship in confidence, and contended that the document should not be disclosed to the applicant. He relied on a decision of this tribunal in ReWestern Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission (1997) 47 ALD 464, where the tribunal said that the definition did not require consideration of the likelihood that an action for breach of confidence would be commenced, its merits, possible defences to it or its likely outcome.
72. Of course, as was contended on behalf of the respondent, there are strong public policy and legal reasons why the respondent and this tribunal should respect the confidentiality of non-disclosable information, and also strong public policy reasons why government agencies should be able to receive and exchange relevant confidential information. However, it is also a basic tenet of administrative law that decision-makers must observe the rules of procedural fairness, except where Parliament has clearly provided that such rules do not apply, and this involves determining the proper interpretation and application of any statutory provisions might negate those rules. If the decision in Western Desert was intended to suggest that there could be no examination whatsoever as to the merits of a potential action for breach of confidence then I respectfully disagree with the decision. According to the Macquarie Dictionary, (4th ed, 2005) the word “found” means relevantly “to afford a basis or ground for”. I consider that whilst the words “found an action” do not require the tribunal to consider the likelihood of an action being commenced or to determine the likely outcome of the action, it is necessary for the tribunal to consider the merits of a possible action for breach of confidence to the limited extent that it must be apparent that there is at least some prima facie evidence or material available to a prospective plaintiff that would, if accepted, enable the plaintiff to establish each of the essential elements of a cause of action for breach of confidence; and if it appears that one or more of the essential elements of the cause of action do not exist, or that no such prima facie evidence would be so available, then the tribunal should find that the information or document in question is not non-disclosable information within the meaning of s 500(6F)(d), because its disclosure could not in those circumstances be said to “found an action” for breach of confidence.
73. To enable the tribunal to determine whether the information or document in question is non-disclosable then (unless the status of the information is clear from the nature of the relevant document or the surrounding circumstances) I consider that the tribunal would need to receive sufficient material to determine whether there is a foundation (in the sense to which I have referred) for an action for breach of confidence. This might necessitate the respondent making inquiries from the third party that disclosed the information or document asserted to be non-disclosable, so that the respondent is in a position to provide appropriate information to the tribunal to determine the limited threshold question to which I have referred. As the respondent would presumably have been in contact with the third party in question, I do not understand the suggestions made on behalf of the respondent that such inquiries would necessarily involve undue difficulty (even if the third party needed to obtain some further information from another source) or that such further inquiries would constitute some attempt to divest information of its confidential status so that it would no longer be non-disclosable information.
74. My view that the respondent should make inquiries and obtain the information to which I have referred is I think consistent with the provisions of s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides in effect that the decision-maker is to use his or her best endeavours to assist the tribunal to make its decision in relation to the proceedings. The tribunal would of course be able to assess the information provided to it as a result of the respondent’s inquiries of some third party in accordance with the flexible approach permitted by s 33 of the AAT Act, whereby the tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.
75. If having considered any necessary material as to the issue of whether the disclosure of the information or document in question would found an action for breach of confidence the tribunal decides that relevant information or the document or some part(s) of it do not constitute non-disclosable information, the respondent should forthwith disclose the relevant information or document (or part(s)) to the applicant. The immediacy of that obligation, if the information or document is found not to be non-disclosable information, arises because in that event, the document should have been included in the documents served on the applicant pursuant to s 501(G)(2) of the Act, and prompt disclosure would be relevant to any issue that may be raised as to any breach of the rules of procedural fairness arising from the late disclosure of the information in question.
76. As to information or documents that constitute non-disclosable information, the tribunal must of course consider such information or documents in evaluating all of the evidence before it. In performing this function, it will be appropriate to take into account that the applicant has not been afforded an opportunity to comment on or challenge the information in question, and this may affect the weight and evidentiary value of the information, depending on its nature, its source, whether the information is such that it is likely to be inherently reliable, and the whole of the evidence before the tribunal. I think that these propositions are consistent with the comment of the Full Federal Court in Peters (supra) at [41], where in a joint judgment, Marshall, Mansfield and Stone JJ, in a case involving protected information under s 503A of the Act, said that “… the weight and evidentiary value of such ‘protected’ information as (the Tribunal) received in evidence would be affected by the extent to which the appellant had been given (or not given) an adequate opportunity to comment upon it, as well as upon other matters.”
77. I further consider that where (as was the position in this case) a document includes not only non-disclosable information, but also information that has previously been provided to the applicant, the previously disclosed information could not be said to be non-disclosable, because that information would lack the necessary quality of confidentiality vis-à-vis the applicant: see Re Gardiner and Human Rights and Equal Opportunity Commission and Anor (1996) 41 ALD 424. In my view, in such circumstances the previously disclosed information could be dealt with in the usual way by the parties and the tribunal, and the proscription against disclosure in s 500(6F)(d) would not apply.
78. In the present matter, the documents asserted by the respondent to contain non-disclosable information are those included in exhibit R1. On analysis, I found that that exhibit included a copy of two documents that had previously been included in the documents served on the applicant pursuant to s 501G(2) of the Act (the “G documents”, exhibit R1). After I pointed this out, I was advised that the respondent no longer maintained that those two documents were non-disclosable, and I therefore made a formal direction that the two copy documents in question be removed from exhibit R1.
79. The respondent did not, in response to a request from the tribunal, advise the tribunal whether or not the urine testing results had been provided to the applicant. As mentioned above, these results are contained in another document included in exhibit R1. The tribunal then made its own inquiries as to the above question, and found that the urine testing results would in the ordinary course have been provided to the applicant. I then gave counsel for the respondent an opportunity to make submissions as to my then provisional view that in the circumstances I should provide to the applicant’s counsel an extract of the document in question, being an extract that contained a summary of the urine testing results. Notwithstanding counsel’s submissions to the contrary, and after noting that the Government agency that had provided the relevant document had agreed to the release of the extract, I then provided the extract to counsel for the applicant, but ordered that the extract not be disclosed until further order to any person other than the parties, their advisers, and officers of the respondent. I then arranged for the hearing to resume for the purpose of giving both parties an opportunity to address that aspect further, either by way of further evidence or in submissions. They did so, and the extract was admitted as exhibit R6. I have referred to the evidence in relation to exhibit R6 in paragraphs 28 and 31 above in the context of the risk of recidivism. With the agreement of both parties at the resumed hearing, I also discharged my earlier confidentiality order in relation to the extract.
80. So as not to infringe the constraints imposed by s 500(6F)(d), I had earlier given the respondent leave to file confidential written submissions in relation to exhibit R1. Those submissions were lodged on 19 April 2007. I have considered them carefully, but do not think they add anything to my above analysis of the relevant issues.
Conclusion
81. I have had careful regard to the considerations set out in the Direction. In summary, the first primary consideration indicates that the applicant’s visa should be cancelled. The second primary consideration also points to that result, although not clearly. The “Other Considerations” point to an opposite result, but not in my assessment sufficiently strongly to displace my evaluation of the matters referred in the first and second primary considerations. After considering all the evidence before me and balancing all of the relevant considerations in the Direction, I have decided that it is appropriate, having regard to the binding provisions of the Direction, to exercise the discretion under s 501(2) of the Act to cancel the applicant’s visa.
Decision
82. The decision under review is affirmed.
THE SCHEDULE – APPLICANT’S CRIMINAL HISTORY
Offence Offence date Conviction date Sentence/Fine
No licence 20.02.89 12.04.89 Fine $75
Fail to truly answer “ “ Fine $75
Disobey learner’s permit 29.01.90 31.05.90 Discharged without penalty
Fail to exhale into alcotest apparatus
“ “ Fine $400 Resist police “ “ Fine $100
Due care “ “ Fine $100
*Larceny 28.05.90 03.12.90 Imprisonment for 12 months (suspended sentence for 2 years; bond of $1000)
Resist police 11.05.91 27.05.91 Fine $100
Disorderly behaviour “ “ Fine $100
Assault/hinder/resist police “ “ Fine $120
Disorderly or offensive conduct or language
“ “ Fine $182 *Possessing a controlled substance for supply
14.03.92 23.10.92 Imprisonment for 9 months *Breach of bond (for larceny offence above) 23.10.92 “ Imprisonment for 12 months (non-parole period of 6 months) - commenced 23.10.92
Larceny 17.03.94 27.10.94 Discharged without penalty
Interfere with a motor vehicle without consent “ “ Licence penalty 12 months
Community service order 160 hoursProducing a controlled substance 04.07.94 11.11.94 Fine $200
Possessing (nominate controlled substance)
02.12.94 11.04.95 Fine $177 Disobey provisional licence condition
16.03.95 29.08.95 Fine $158 Drive under the influence 11.09.95 27.05.96 Fine $814
Drivers licence disqualification 12 monthsNo licence “ “ Discharged without penalty
*Possessing a controlled substance for supply “ 07.11.96 Imprisonment for 4 years (non-parole period of 18 months) - commenced 05.09.96
Unlawful possession 22.10.95 27.05.96 Community service 48 hours/4 months
Unlawful possession 14.03.96 13.06.96 Community service 80 hours/10 months
False Pretences “ “ Costs $155
*Drive under disqualification 19.07.96 30.01.97 Imprisonment for 1 month
Drive with excess blood alcohol
Disobey provisional licence condition01.01.99 06.10.99 Fine $796
Drivers licence disqualification 8 months
Defendant warned as to consequences of driving whilst disqualified^Driver/rider state false name or address
06.09.00 12.09.00 Fine $560 ^Unlicensed for class, class C/R/LR/MR - First offence
“ “ Fine of $1060 ^*Goods in personal custody reasonably suspected being stolen
07.02.01 26.10.01 Imprisonment for 5 months *Import prohibited import or export prohibited export 14.09.01 5.12.03 Imprisonment for 5 years (non-parole period of 3 years)
Fail to truly answer
Drive under disqualification
Drive with excess blood alcohol29.09.01 30.08.02 Drivers licence disqualification for 12 months
Fine of $784
Defendant warned as to consequences of driving whilst disqualifiedFail to comply with bail agreement (2 counts)
18.06.02 25.06.02 19.12.02 Fine of $785.20 Fail to comply with bail agreement
09.09.02 24.03.03 Fine of $189 Drive under disqualification 27.07.03 14.01.04 Fine of $555
_________________________________________________________________________
I certify that the 82 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 11 and 12 April 2007 and 9 May 2007
Date of Decision 15 May 2007
Advocate for the Applicant Ms J Nunan
Solicitor for the Applicant Jane Nunan & Associates
Advocate for the Respondent Mr P d’Assumpcao
Solicitor for the Respondent Australian Government Solicitor
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