Phung and Minister for Immigration and Multicultural Affairs - [2000] AATA 855

DECISION AND REASONS FOR DECISION [2000] AATA 855

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/466

GENERAL ADMINISTRATIVE DIVISION     )
           Re      Quoc Kinh PHUNG
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date26 September 2000
PlaceMelbourne

Decision      The decision under review is set aside and the matter remitted to the respondent with a direction that the deportation order be revoked.
  ........(Sgd. B.M. Forrest)............
  Deputy President
CATCHWORDS
MIGRATION – Deportation – applicant arrived in Australia in 1978 as refugee from Vietnam - lengthy criminal history relating to drug addiction – convictions for trafficking in heroin – General Direction – Criminal Deportation No. 9 – primary considerations – expectations of the Australian community – protection of the Australian community – best interests of the children of the applicant – other considerations – decision set aside.
Migration Act 1958 ss. 200, 201, 204 and 499
Sentencing Act 1991 (Vic) s. 18
Maiorana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119
R. v Phung [1999] VSCA 195; (1999) 108 ACrimR 506
Diep and Minister for Immigration and Multicultural Affairs [1999] AATA 567
Re Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161

REASONS FOR DECISION

26 September 2000 Deputy President B.M. Forrest

The applicant, Mr Quoc Kinh Phung, has applied to the Tribunal for review of an order, made on 16 December 1996 by a delegate of the Minister for Immigration and Multicultural Affairs, pursuant to s. 200 of the Migration Act 1958 ("the Act") that the applicant be deported from Australia.
The relevant provisions of the Act are:
"200 The Minister may order the deportation of a non-citizen to whom this Division applies.
201 Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
…
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person."
The convictions upon which the deportation order was grounded were as follows:
(a)in the County Court of Victoria on 7 June 1989 of Causing Serious Injury Intentionally (three counts - four years imprisonment), Armed Robbery (three years concurrent), Robbery (two counts – two years each concurrent), a total effective sentence of four years with a non parole period of three years; and
(b)in Melbourne Magistrates' Court on 6 July 1995 of Traffick in a Drug of Dependence (heroin), a total effective sentence of eighteen months imprisonment with a non parole period of twelve months.
Although the point was not raised during the hearing, it seems to me on the basis of the calculation of lawful residence that at the time of commission of the offence of trafficking in a drug of dependence (heroin) which was included in the deportation order as in paragraph 3(b) above, that the applicant had then acquired ten years permanent residence in Australia, and this is therefore not an offence which may ground a deportation order. Also from the material it appears that the sentence of eighteen months with a non parole period of twelve months for trafficking in heroin was imposed in the County Court on appeal, not in the Magistrates' Court which had imposed a sentence of eighteen months for that offence.
Irrespective of whether that offence was committed outside the ten year permanent residence limitation, criminal behaviour subsequent to the deportable offence is not irrelevant to the question of recidivism in determining whether to make a deportation order based on an earlier conviction: Maiorana v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 119.
Section 201 of the Act applies to the applicant. The offences, the subject of the County Court convictions were committed in 1988. At that time the applicant had acquired eight years one month and fifteen days permanent residence in Australia: s. 204 of the Act.
The applicant was born in Saigon, Vietnam on 28 November 1964. He arrived in Australia on 4 January 1978, as a refugee, at age 13 years. He was granted permanent residence on 1 August 1978 and has resided continuously in Australia since.
In Vietnam the applicant attended primary school for five or six years until he was 10 or 11 years old. The applicant's parents were both born in China. They moved to South Vietnam and met in Saigon in 1955 where they were married that year. They had five children. The applicant is the second youngest.
In 1977 the family paid for the applicant and two sisters to leave Vietnam and travel by boat to Malaysia where the applicant spent a month or two in a refugee camp before coming to Australia. The applicant's father and younger brother left Vietnam in 1982, spent six months in a refugee camp in Singapore before being accepted into Australia in 1983. The applicant's father sponsored his mother to Australia in 1990. Both parents have lived together in Australia since.
Upon arrival in Australia the applicant spent twelve months in a migrant hostel with his two sisters. He was unable to speak English. He spoke Cantonese and Vietnamese. He attended high school for a few months, also special English classes for a short while, but had difficulty coping and soon dropped out. He said he was feeling depressed and lonely and missed his family overseas. He lived for a time with his sisters who were by then establishing their own lives, one was studying and working, the other had a young family, and at other times he lived at the hostel with friends.
He began to experiment with drugs, at first marijuana, then heroin. He began to get into trouble and has an extensive criminal record from 1986 to 1995.
The sentencing remarks of Judge Dyett reveal that the offences for which the applicant was convicted and sentenced in the County Court on 7 June 1989 following guilty pleas involved a spate of very serious offences. The offences were committed over a one week period in which the applicant and his co-offenders, in separate incidents in the Chinatown district of Melbourne, attacked and robbed six persons of gold chains. In two of the incidents, the victims were stabbed, one wounded in the right side requiring eight days in hospital, the other in the arm leaving residual scarring. His Honour observed that the offences were motivated by a craving for heroin to which the applicant had been introduced in 1984. The heroin habit was in part funded by the sale of the gold chains robbed from the victims. When convicted the applicant had twelve prior convictions from four Court appearances, mostly for offences of dishonesty. None of the priors were for crimes of violence.
In early 1991, shortly after release from prison for these offences, the applicant met Joanne Smith and they began to live together. She spoke English only and at first the applicant's English was not very good but improved over time. They have two children, Jason born on 16 November 1991, and David born on 28 September 1995. Joanne told the Tribunal that the relationship progressed "very well" although when she discovered the applicant with drugs in the home she asked him to leave. She was aware that he has had a drug habit for a long time.
In the period from March 1992 to January 1995 the applicant was convicted of possession and/or use of heroin on eight occasions. On six occasions he was fined, twice he was given community based orders to receive drug and alcohol treatment, and once he was ordered to attend the methadone program at Moreland Hall.
On 21 July 1995, on appeal from a Magistrates' Court conviction, the applicant was sentenced in the County Court to a total term of imprisonment of eighteen months with a minimum term of twelve months for trafficking in heroin, handling/receiving stolen goods, theft from a motor vehicle, assault with weapon, intentionally or recklessly causing injury and possession and use of heroin and cannabis. The heroin trafficking offence is mentioned earlier in these reasons having been included in the deportation order. When the applicant was imprisoned in 1995, Joanne visited him regularly.
Upon his release in April 1996 the applicant resumed living with Joanne Smith and his two children. She became so concerned when he resumed contact with past associates that she ordered him to leave their flat for the sake of the children, not wanting them to grow up in an environment involving drugs. They had little contact until early 1998 when they re-established a relationship which is probably best described as somewhat fragile.
In October 1996, an interdepartmental submission recommended that the applicant be deported. Following the recommendation, the deportation order was made on 16 December 1996. The applicant was served with the deportation order on 9 January 1997. The application for review of the deportation order was lodged in the Tribunal on 4 May 1998. An application for an extension of time within which to apply for review of the deportation order was subsequently granted by the Tribunal. The respondent consented to the extension of time sought.
On 8 January 1997, the applicant was arrested and charged with trafficking in heroin between 17 September 1996 and 22 November 1996. He was remanded in custody and did not apply for bail. After a five day trial the jury found the applicant guilty of one count of trafficking in heroin (count 1) and one count of possession of cannabis (count 2). The applicant was sentenced on 19 February 1999 to five years imprisonment with a non parole period of three years on count 1. He was fined $50 on count 2. An application to the Court of Appeal for leave to appeal against the conviction on count 1 was successful. On 1 December 1999 the Court of Appeal (R. v Phung [1999] VSCA 195; (1999) 108 ACrimR 506) granted leave to appeal against conviction, allowed the appeal, quashed the conviction and ordered a new trial. The members of the Court of Appeal in separate judgments found that there was a miscarriage of justice in that the applicant was, without legal representation, denied a fair trial and ordered a new trial.
On retrial the applicant was found guilty in the County Court of one count of trafficking in heroin and sentenced on 7 June 2000 to five years imprisonment with a non parole period of three years (the sentence originally imposed). The applicant had been in custody since his arrest on 8 January 1997. Accordingly, he was immediately eligible for parole on the reckoning of s. 18 of the Sentencing Act 1991 (Vic). The applicant was described by Judge White as a user/dealer "somewhere of the status of a middle rung operative in the heroin hierarchy". His Honour added "There is no evidence before the Court to indicate substantial financial gain on your part and you would not appear to have lived an extravagant lifestyle".
The Minister for Immigration and Multicultural Affairs, Mr Ruddock, has issued a General Direction under s. 499 of the Act of Australia's Criminal Deportation Policy ("the Direction") dated 21 December 1998 and with effect from that date. It replaces the Policy Statement, "Australia's Criminal Deportation Policy" issued on 24 December 1992 by the then Minister, Mr Hand. Although the deportation order was made when the previous policy statement was operative, the Direction has application to this review. Generally speaking the Direction covers the same issues as the previous policy. The weight to be given to the relevant considerations is stated more explicitly in the Direction than in the previous policy. Furthermore, while the previous policy was taken into account unless there were cogent reasons to depart from the policy, the Direction has the force of s. 499.
The Direction requires decision makers to have regard to considerations termed "primary" and "common". Paragraph 5 states that a decision maker "should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations".
There are two primary considerations:
"(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children."
Under community expectations there are two aspects of the Direction (paragraph 8):
"(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia."
Paragraph 9 contains a general statement of government policy on community protection:
"It is the Government's view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government's view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community. The Government considers that children and young people are especially at risk in this area. The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision maker should have due regard to the Government's view in this respect."
Paragraph 10 recites three factors as relevant to an assessment of the level of risk to the community and the need for its protection:
"(a) the seriousness and nature of the crime;
(b) the risk of recidivism; and
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons."
I take into account that the convictions in the County Court on 7 June 1989, referred to in the deportation order, were for crimes of violence falling within the "very serious" offences listed in paragraph 11 of the Direction. The fact that the applicant's crimes were motivated by a heroin addiction provides an explanation but not an excuse for the offending.
In assessing the level of risk to the community and the need for its protection the risk of recidivism is a factor of particular relevance in the present case, given the nature and history of the offending, and the fact that the obvious danger to the community of a heroin addict reverting to his addiction and dealing in drugs to maintain a former lifestyle means that the risk of reversion to that lifestyle and in turn of reoffending requires very careful scrutiny.
Rehabilitation is never certain. The applicant gave evidence that his heroin addiction is under control, that he has not used drugs since October 1999 and is determined not to reoffend nor revert to heroin use. The objective evidence sends contradictory signals. The applicant's history of drug abuse and related offending inspires little confidence that he will not reoffend. The history reveals an ongoing pattern of drug offending subsequent to the County Court convictions in 1989 and continuing during the early to mid 1990's. Drug treatment had no effective impact as the applicant continued down the path of drug possession and use while apparently unable to distance himself from associates involved in drugs. When imprisoned in 1989 he showed little interest in self improvement and was reported as adopting a belligerent unco-operative attitude towards the prison regime. He was involved in a number of incidents involving prison discipline. A parole report at that time was pessimistic.
While in prison during 1995-1996 serving the sentence for trafficking in heroin he was reported to be of no concern to prison authorities but was not motivated to partake in programmes to address his behaviour. His compliance with parole conditions following his release in April 1996 was reasonable although he continued to use drugs.
Reports made during his current incarceration indicate that although he returned positive urine samples on 7 January 1998, 20 May 1998 – opiates, 30 June 1998, and 24 July 1998, the applicant keeps to himself, is co-operative, his general behaviour is not of concern, and he has expressed some interest in English courses. In September 1998, the applicant completed the drug education programme at Port Phillip Prison. The drug and alcohol counsellor, A. Jones, wrote (23 September 1999):
"Mr. Kinh Phung has been observed to participate well in all group activities and has been able to display a level of insight into his own self-reported issues, and has identified steps he wishes to take to attempt to lead a healthier lifestyle.
It is the writer's opinion that Mr. Kinh Phung is genuine in his approach about confronting issues and furthering his potential for change. Given this, it is recommended that Mr. Kinh Phung be granted the opportunity to continue achieving appropriate risk reduction, rehabilitation and personal goals to prevent from re-offending in an environment the Court deems appropriate."
Mr Hieu Tan Nguyen is a youth worker working with Vietnamese offenders. He first met the applicant in about 1994. He also met Joanne Smith about this time. He has observed the relationship since and believes it to be genuine. Mr Nguyen told the Tribunal the applicant was a lonely figure lacking in communication skills as he had little education and cannot read or write English. Mr Nguyen said that when the applicant informed him in 1997 that he had received a deportation order, he told the applicant that he could not help him as he thought the applicant a hopeless cause because of his drug involvement. In 1998, while in Fulham Prison, the applicant asked Mr Nguyen for help and promised to reform. Mr Nguyen said he has observed a marked change in the applicant's attitude during the last twelve months in that the applicant has convinced him of his desire to reform, he spends his time quietly in prison and has improved his English skills. He believes the applicant is now at an age that he genuinely wants to give up drug use. From enquiries he has made within the prison system responses have been favourable, he said. The applicant had told him that his drug usage ceased in October 1999.
In giving evidence the applicant was quite candid about his prospects. I think he is aware of the difficulties he faces and wants to get some stability in his life and to be free of his former lifestyle. He has spent a substantial period of time in custody. He has little education or English skills. He has no employment skills and has to date led an aimless existence in Australia. Added to this his record of atrocious behaviour provides little in the way of favourable indicators. However, I was impressed with Mr Nguyen's evidence who, in my experience, having heard his evidence in some other matters, has a real understanding of the difficulties facing young Vietnamese arriving in Australia without parental support yet does not overstate the case. He was optimistic about the applicant's prospects of rehabilitation and I accept his evidence. In the speculative task of assessing future prospects, I am prepared on the evidence before me, to accept that despite the set backs along the way, some drug usage while in prison, and a corresponding moderately low risk of recidivism, that the applicant has at least moderate prospects of rehabilitation.

I do not regard the deterrence factor as assuming much weight in the present matter given the evidence that the applicant is a "loner" and therefore his circumstances are likely to be known to only very few non citizens. One element of the deterrence factor is directed at persons engaged in organised criminal behaviour. While the applicant was a link in the distribution chain, he was a dispensable link, as noted earlier, somewhere in the middle rung of the hierarchy. Whatever happens to the applicant will I suspect have only minor impact upon those organising and profiting from the drug trade. Similarly, it is very doubtful if the fate of the applicant in his circumstances would influence other addicts. For a non citizen addict seeking to satisfy his craving for heroin, rational thought of the potential consequences of offending is likely to be an early casualty. In such circumstances the likelihood that deportation of the applicant would be likely to prevent or discourage similar offences by other persons is of little relevance.
The second of the primary considerations concerns the best interests of the two children, Jason and David. The starting point, as the Direction states, is that the interests of children will be best served by living as a family unit with their mother and father (paragraph 18). There was nothing in the evidence before me to suggest that the interests of the children do not coincide. Their mother has had the responsibility of looking after the children during the periods the applicant has been in custody. However, during the periods the family has been together, the applicant has had a parenting role and I am satisfied the family remains close despite the applicant's past behaviour leading to extended periods of separation from his family. The applicant remains in regular contact by telephone with his children.
Joanne Smith said the elder son Jason, because of his age, is particularly missing his father and wants him home. He has disturbed sleep. He is presently in Grade 2 at school and has had counselling for his problems. He is described by Family Counsellor, Denise McGregor, as a sensitive boy, anxious about his father being in gaol, and at times very distressed about separation from his father (Ex. B). In recent times Joanne has not visited the applicant with the children because the experience of seeing his father in gaol is too upsetting to Jason. The younger son David attends pre school.
Although there was no psychological evidence before me, I accept that if the applicant were to revert to his pattern of drug use and reoffending, inevitably this would have some negative impact upon the children as they grow older. Joanne Smith impressed me as having done her best to adjust to her family circumstances, and despite the burden she has had to shoulder, I am satisfied that she is genuine in her belief that the applicant now accepts the destructive nature of his offending and wants to play a more responsible role in the upbringing of his children. Further, she believes that it is in the children's best interests that he does so.
During the hearing both children appeared to react spontaneously and affectionately towards their father. I also accept that if the applicant is deported, there is no reasonable expectation that Joanne, and the children as Australians follow him overseas because of the disruption to their lives in a foreign culture without any tangible level of support away from the support systems Australia can provide. I accept in the circumstances that the children's best interests are served by remaining in Australia. I also accept that permanent separation from their father, the likely result if he is deported, would not in the medium term at least be in their best interests, if as asserted, he is able to lead a more responsible lifestyle, free of drugs. While the relationship with Joanne has understandably travelled a rocky path, it has survived his incarceration and she, as much for the sake of the children, wants it to survive.
Two of the most common of the "other considerations" are stated in paragraph 7 of the Direction to be:
"(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
(b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation."
The weight to be given to the "other considerations" is explained in paragraph 21 which states that it is "appropriate that these matters be taken into account but given less weight than the primary considerations".
In relation to the degree of hardship to the potential deportee, the factors to be considered include (paragraph 22):
"(a)whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported.
(c)the degree and extent of the potential deportee's ties with the likely country of return;
(d) the strength of other family, social or business ties in Australia;
(e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration."
As stated earlier the applicant arrived in Australia as a refugee at 13 years of age. He has lived in Australia for 22 years. All of his immediate family, his parents, two sisters and a brother have settled in Australia and all have Australian citizenship. His other sister perished when the boat in which she was travelling, escaping from Vietnam in 1983, sank in a storm. The applicant has no known relatives overseas nor any business ties either in Australia or overseas. I accept that deportation would cause much distress to his parents who have endured much in bringing up their family. His relationship with his defacto spouse has been considered earlier in these reasons.
His family ties are now in Australia. The applicant's father said that when his son was not in gaol he assisted his parents, with shopping, household cleaning and regularly visited with the children. Additionally, his parents are in poor health.
Although there is no family support in Vietnam, at least he will not face the language and cultural difficulties he experienced in Australia despite the length of time he has been away. However, his lack of education and employment skills would reasonably be expected to exacerbate the hardship he would face in returning to Vietnam.
One other factor which I think is of some relevance in this matter is that a co-offender of the applicant had a deportation order set aside: Diep and Minister for Immigration and Multicultural Affairs [1999] AATA 567. The role of the Tribunal is to consider the matter on its merits and arrive at the correct or preferable decision, and while the facts in this case are not the same as in Diep there are some striking similarities. While consistency in decision making may be seen as an ingredient of justice it does not constitute a hallmark of it. Decision makers may be consistently wrong in their interpretation and application of a policy: Re Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639. However, the principle of parity applied in sentencing, has some analogous features to which regard may be had in the circumstances of the present decision under review and I take this into account.
This is not an easy matter and the competing considerations are finely balanced. Because of the nature and seriousness of the applicant's offending and the fact that he presents as a not entirely satisfactory risk of reoffending, these factors are of importance in the context of community protection. However, the scales are tipped slightly in his favour because of the best interests of his children and by the undoubted severe hardship that deportation would cause to the applicant: see Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161 and to a lesser extent his de facto spouse and his parents.
At the conclusion of the hearing, I was informed that the conviction for trafficking in heroin in the County Court on 7 June 2000 is on appeal. In these reasons I have taken into account the conviction as it stands.
For these reasons the decision under review is set aside and the matter remitted to the respondent with a direction that the deportation order be revoked.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  5 and 6 July 2000
Date of Decision  26 September 2000
Counsel for the Applicant        Mr D. Perkins
Solicitor for the Applicant         Kuek & Associates
Solicitor for the Respondent    Mr R. Frazzetto, Australian Government Solicitor