Phuong Do and Minister for Immigration and Citizenship
[2013] AATA 124
[2013] AATA 124
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5804
Re
Phuong Do
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 8 March 2013 Place Melbourne The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion to cancel Mr Do's visa pursuant to section 501(2) of the Migration Act 1958 not be exercised.
..............................[sgd]..........................................
Regina Perton, Member
MIGRATION – citizen of Vietnam - cancellation of Return Resident (Class 155) visa - convictions for drug related and other offences - character test - exercise of discretion
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Direction [No. 55] – Visa Refusal and Cancellation under s 501
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
REASONS FOR DECISION
Regina Perton, Member
8 March 2013
Phuong Dinh Do (Mr Do) is a citizen of Vietnam who was born in 1980 and arrived in Australia with his mother and brother as a nine year old. He was granted permanent residence on arrival. Mr Do’s father was already in Australia when Mr Do arrived having been accepted as a refugee after fleeing Vietnam by boat some years earlier. Apart from two holidays in Vietnam, Mr Do has lived in Australia since arriving in 1989. His parents and two younger brothers are Australian citizens.
Mr Do has a large number of criminal convictions, mostly for drug related matters and breaches of the conditions of previous sentences for those matters. He is still serving his most recent sentence and is due to be released from prison in April 2013.
On or about 14 December 2012 a delegate of the Minister for Immigration and Citizenship (the Minister) decided to cancel the Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa held by Mr Do because he did not pass the character test set out in the Migration Act 1958 (the Act) due to his criminal record.
The Tribunal must decide whether to exercise the discretion not to cancel Mr Do's visa despite his failure to pass the character test. This involves an assessment of a number of prescribed considerations which are set out below.
LEGISLATIVE BACKGROUND
Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Section 501(7)(d) provides that a person has a substantial criminal record if the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions) where the total of those terms is two years or more.
Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.
On 25 July 2012 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.55] - Visa Refusal and Cancellation under s 501 (Direction 55) which came into operation on 1 September 2012. The Direction provides guidance to decisionmakers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 7 of Direction 55 sets out how to exercise the discretion and paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case. Paragraph 8(4) of Direction 55 states that primary considerations should generally be given greater weight than the other considerations.
ISSUES
The issues before the Tribunal are:
·Does Mr Do pass the character test? If not:
·How do the primary considerations and other considerations apply to Mr Do?
·Should the discretion to cancel the visa be exercised?
DOES MR DO PASS THE CHARACTER TEST?
Mr Do has the following criminal history:
| 12. Court | Court Date | Offence Description | Result |
| Melbourne Magistrates | 17 May 2012 | Poss Proh Weapon W/O Exemption/Approval Traffick Heroin Possess a Drug of Dependence Breach re 11/05/2011 Traffick Heroin Traffick Cannabis | Aggregate 3 months imprisonment. Concurrent. Aggregate 3 months imprisonment. Concurrent. Suspended sentence wholly restored. |
| Heidelberg Magistrates | 11 May 2011 | Traffick Heroin Traffick Cannabis Resist Police Fail to Answer Bail Granted | On both charges: Imprisonment 8 months concurrent partially suspended. Term to be served is 3 months. On each charge: Imprisonment 1 month concurrent. |
| Melbourne Magistrates Court | 02 Feb 2011 | Traffick Heroin Traffick Heroin Deal Property Suspected Proceed of Crime (3 charges) Possess Heroin (2 charges) Possess Amphetamine Fail to Answer Bail Granted (2 charges) Use Amphetamine Drive Motor Vehicle Without Licence Breach re 03/02/2010: (Traffick Heroin Deal Property Suspected Proceed of Crime) Failure to Comply With Intensive Correction Order | Imprisonment 10 months. Imprisonment 6 months. Period to be served part concurrently is 4 months. On each charge: Imprisonment 3 months concurrent. On both charges: Imprisonment 3 months concurrent. Imprisonment 1 month concurrent Imprisonment 14 days concurrent Breach of Intensive Correction Order. Order cancelled. To serve unexpired portion of 225 days. Proven. No further penalty. |
| Melbourne Magistrates Court | 03 Feb 2010 | Traffick Heroin Deal Property Suspected Proceed of Crime | On each charge: Imprisonment 8 months concurrent. To be served by way of an Intensive Correction Order. |
| Heidelberg Magistrates Court | 12 Sep 2008 | Handle/Receive/Retention Stolen Goods (2 charges) Possess Prohibited Weapon Without Exemption/Approval Use Cannabis Use Heroin (5 charges) Theft (2 charges) Obtain Property by Deception (5 charges) Handle/Receive/Retention Stolen Goods (2 charges) Traffick Heroin (2 charges) Traffick Heroin (2 charges) Fail to Answer Bail Granted (3 charges) Use Methylamphetamine Possess Cannabis Possess Heroin (3 charges) Possess Ecstasy Possess Amphetamine Possess Methyl amphetamine | On each charge. Imprisonment 6 months concurrent. On all charges: Imprisonment 6 months concurrent On all charges: Imprisonment 6 months concurrent. |
| Heidelberg Magistrates Court | 15 Nov 2004 | Possess Heroin Use Heroin Fail to Answer Bail Breach re 23/02/2004: Breach re 23/02/2004: (Unlawful Assault; Intentionally Cause Injury) Failure to Comply With Community Based Order (2 charges) | On all charges: Imprisonment 6 months concurrent. Sentence is On all charges: Imprisonment 2 months concurrent. Imprisonment 2 months concurrent. On each charge: Proven. No further penalty. |
| Heidelberg Magistrates Court | 23 Feb 2004 | Possess Money - Being Proceeds of Crime Breach of Suspended Sentence Order Failure to Comply With Community Based Order Use Heroin Fail to Answer Bail Theft From Shop (Shopsteal) Breach re 10/05/2002: (Unlawful Assault; Intentionally Cause Injury) Traffick Heroin | On each charge: Convicted. Community Based Order for 12 months to perform 60 hours. On both charges: Proven. No further penalty. Convicted. Community Based Order for 12 months to perform 60 hours. Convicted. Community Based Order for 3 months to perform 66 hours. Convicted. Community Based Order for 12 months to perform 60 hours. |
| Melbourne Magistrates Court | 10 May 2002 | Unlawful Assault Intentionally Cause Injury | On both charges: Without conviction. Community Based Order for 6 months to perform 72 hours. |
| Preston Magistrates Court | 27 Aug 2001 | Handle/Receive/Retention Stolen Goods Possess Money - Being Proceeds of Crime Possess Regulated Weapon Possess Heroin Use Heroin Theft From Shop (Shopsteal) (2 charges) | On all charges: Imprisonment 3 months concurrent wholly suspended for 12 months. On all charges: Convicted. Fined $500. Convicted. Fined $250. |
| Melbourne Magistrates Court | 4 April 2001 | Possess Heroin Use Heroin Theft-from Shop (Shopsteal) Possess Regulated Weapon | Failed to appear, warrant issued. |
| Preston Magistrates Court | 01 Dec 1999 | Theft From Shop (Shopsteal) Breach re 28/04/1999: (Traffick Heroin (3 charges); Resist Police or Person Assisting Police (2 charges); Assault Police / Person Assisting Police; Possess Heroin; Use Heroin) | Convicted. Fined $500. Pay compensation $12.95. Breach of Community Based Order. Order cancelled. |
| Melbourne Magistrates Court | 17 Sep 1999 | Traffick Heroin Traffick Heroin Possess Property Being Proceeds of Crime Possess Heroin | 6 months detention in a Youth Training Centre. On each charge: 6 months detention in a Youth Training Centre. |
| Melbourne Magistrates Court | 28 Apr 1999 | Traffick Heroin (2 charges) Possess Heroin Resist Police or Person Assisting Police (2 charges) Use Heroin | On all charges: Convicted. Community Based Order for 18 months to perform 250 hours. Convicted. Community Based Order for 18 months to perform 250 hours. On all charges: Convicted. Community Based Order for 18 months to perform 250 hours. |
| Preston Magistrates Court | 10 Mar 1998 | Theft From Shop (Shopsteal) | Without conviction. Adjourned to be of good behaviour for 6 months. |
Mr Do is currently in Fulham Prison with a calculated release date in April 2013. He conceded, and the Tribunal finds, that he does not pass the character test.
HOW DO THE PRIMARY AND SECONDARY CONSIDERATIONS APPLY TO MR DO?
Assessment of primary considerations
The four primary considerations are set out in paragraph 9(1) of Direction 55:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person's ties to Australia;
(c) The best interests of minor children in Australia; and
(d) Whether Australia has international non-refoulement obligations to the person.
(a) Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1(1) of Direction 55 states that, when considering the protection of the Australian community, decision-makers should have regard to the principle that:
... the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 9.1(2) states that decision-makers should also give consideration to:
a) The nature and seriousness of the person's conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
a) The nature and seriousness of Mr Do's conduct
Paragraph 9.1.1(1) of Direction 55 lists a number of factors that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
Mr Do’s offences are primarily related to illicit drug trafficking or related crimes involving handling stolen goods but there have also been charges involving violence. The respondent submitted that Mr Do has the following convictions for offences involving violence, threat of violence, use of force or possession of weapons:
·possess prohibited weapon without exemption/approval;
·possess regulated weapon;
·resist police;
·unlawful assault;
·intentionally cause injury;
·resist police or person assisting police; and
·assault police / person assisting police.
Mr Do submitted that the offences involving violence took place over a decade ago. He said the last one was in 2002 for which he had received no conviction but rather a further community-based order (CBO). On 1 December 1999 Mr Do was convicted of shoplifting, breaching the CBO that had been imposed in April 1999, possession and use of heroin and resisting arrest. Mr Do said that he had been brought to the ground by police and had been wriggling to try to get into a more comfortable position. It was whilst doing that he had made contact with the police. He said that he accidentally kicked an officer.
In August 2001 Mr Do was in court for, amongst other things, possession of a regulated weapon. He was convicted and fined. He received a three month prison sentence suspended for 12 months. In his witness statement dated 8 February 2013, Mr Do stated:
... The regulated weapon was a butterfly or flick knife. I had this because I thought it was cool. I was so addicted to heroin at this time that I cannot really remember a lot of things I was charged with doing.
In May 2002 Mr Do was convicted of unlawful assault and intentionally causing injury. In his witness statement, Mr Do described the unlawful assault charge as follows:
26. In relation to the unlawful assault charge that came before the Melbourne Magistrate's Court on 10 May 2002, I do vividly remember the incident that led to that charge because it was the Grand Final match between Essendon and the Brisbane Lions. A friend of mine who lived in Lalor was washing his car and his next-door neighbours were having a Grand Final barbecue. They were Aussies who were drinking and kicking a football. They started to kick the football at my friend's car. Things started to get nasty and my friend rang me and another friend for backup. I was picked up by my friend in his car and we drove to Lalor. We had samurai swords in the car. We started to argue with the next door neighbours and things got out of hand. We pointed our samurai swords at them to scare them. One of the girls at the barbecue filmed the whole thing on her iPhone.
27. Another neighbour called the police. We put the swords down and got into a fist fight with the neighbours. After the fight was over, I got a taxi and went home. As the whole thing was filmed, the police were able to see the registration plate on my friend's car. When I got home, there were three or four police cars waiting outside my house. I was taken to the station, charged and bailed. The magistrate watched the video and thought we were just a bunch of hot headed boys. He saw that we put down our swords and just got into a fist fight... I did not get into trouble with the police for another two years…
In his oral evidence, Mr Do said that he had the swords as display items on his wall as he liked to collect antique weapons. He said the assault charge stemmed from his attempt to use the blunt end of the sword to stop a much larger Caucasian man from pummelling his smaller Vietnamese friend.
In 2008 Mr Do was convicted of possession of a prohibited weapon without exemption/ approval. Mr Do said that he was not aware that he was breaching the law by collecting antique weapons. Mr Do said the weapon in question was an antique sword on his wall. He said that you can buy them in many Chinese stores in Little Bourke Street even now. He had not been using the collected weapons but they had been discovered by police when they entered his home with his family's permission.
The respondent contended that the convictions described above, particularly the May 2002 conviction involving a threat of violence with swords, are relevant considerations.
(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
As indicated above, Mr Do’s offences include attempting to escape police custody. Mr Do said that he was intercepted by police at a festival day in Footscray in the early days of his offending in 1999. He admitted he was wriggling and trying to get out of the position he was in. He was convicted and given a CBO for 18 months to perform 250 hours of community work for those two charges and another for using heroin.
On 11 May 2011 Mr Do was convicted of a charge of resist police along with failing to answer bail and drug trafficking charges.
The respondent noted that while Mr Do’s offences involving police in 1999 occured many years ago, there was also the May 2011 charge. The respondent submitted that such crimes committed against government representatives or officials are serious and the Tribunal concurs.
(c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Mr Do has never been in immigration detention. Therefore this consideration is not relevant.
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c) is considered to be serious;
The conduct by Mr Do falls under s 501(6)(d) and is therefore considered to be serious.
(e) The sentences imposed by the courts for a crime or crimes;
Mr Do has been dealing with, and using, illicit drugs since he was 17 or 18 years of age. He has had many arrests for trafficking heroin and other drugs. The first recorded convictions were in April 1999 when he was placed on a CBO which required him to undertake 250 hours of community work over 18 months, to submit to drug testing as required and to undergo assessment and treatment as directed. In September 1999 he was again charged with trafficking heroin, possessing heroin and possessing property being the proceeds of crime. He was given six months detention in a youth training centre. In December 1999 Mr Do was fined for shoplifting and required to pay compensation of $12.95. He was also given further time in a youth training centre, concurrent with his existing sentence for breaching his CBO.
In April 2001 Mr Do failed to appear in court to face charges involving possession and use of heroin, shop lifting and possessing a regulated weapon. In August 2001 he was convicted and fined for failing to answer bail and the charges that were due to be heard in April 2001 were dealt with. He was fined with a conviction for using heroin. He also received a three month concurrent sentence suspended for 12 months for theft charges and related matters.
In February 2004 Mr Do was convicted for heroin trafficking and placed on a CBO for 12 months. He was required to perform 60 hours of community work over six months and to undergo assessment and treatment for drug addiction. He was also convicted of possessing money that was the proceeds of crime for which he also received a CBO. He also received a CBO for charges of using heroin, failing to answer bail and other charges. One of the other matters dealt with was a breach of the suspended sentence order from August 2001. The result noted in the court records for this proven charge was that no further order be made as to the suspended sentence as there was substantial progress towards rehabilitation.
In November 2004 Mr Do was given a jail term following his failure to comply with his CBO. He was required to serve three months.
Mr Do faced further charges in September 2008 including possession and use of various drugs as well as theft and handling stolen goods charges. He received six month prison sentences which were to be served concurrently.
In February 2010 Mr Do faced drug use and trafficking charges along with theft, unlicensed driving of a motor vehicle and related offences. He was given eight months imprisonment on each charge concurrently which was to be served by way of an intensive correction order.
In February 2011, May 2011 and May 2012, Mr Do again faced court as outlined in the summary provided earlier. He is currently in prison serving sentences for drug related offences and other matters.
Following the issue of the notice of intention to cancel Mr Do’s visa served in April 2012, Victoria Legal Aid provided a submission on his behalf dated 25 September 2012 in which the following was submitted:
… It is worth noting that Mr Do has only appeared before the Magistrates Court, which means that even though he is guilty of trafficking offences it is not so serious as to be automatically dealt with by a County Court judge…
The respondent submitted that the Magistrates’ Court has the jurisdiction to handle many serious and indictable criminal offences.
(f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
The records indicated that Mr Do commenced offending at around the age of 18 years, which was about nine years after his arrival in Australia. He has appeared in court regularly since then. His offences have continued to be primarily drug related being the possession, use and sale of drugs. There have been other offences which also show Mr Do’s disregard for the law such as those arising from his use of a motor cycle while unlicensed. Overall, however, there does not appear to be a trend of increasing seriousness of the offences rather the continuity of similar offences and a demonstrated ongoing disregard for the law.
Mr Do has continued to breach CBOs when he has been given the chance to stay out of prison. However it is clear that he has continued to flout the law and to breach the community based orders with his subsequent imprisonment for so doing.
(g) The cumulative effect of repeated offending;
By failing to comply with his community based orders and continuing to offend, Mr Do has served prison sentences of increasing length.
(h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
There is no material to suggest that Mr Do provided false or misleading information to the Department.
(i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning could not be considered to be in the person's favour);
Mr Do had not received a warning prior to the notice of intended cancellation he received in relation to the matter before the Tribunal. There is no evidence that Mr Do has reoffended after receiving that notice. His prison record is clear. He was incarcerated at the time of getting the first and only notice which resulted in cancellation of his visa and remains incarcerated.
(j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
All of Mr Do's offences were committed in Australia.
Conclusion regarding the seriousness of the offences
The Tribunal concludes that the offences, and Mr Do’s continuation of a pattern of re-offending are to be described as serious.
(b) The risk to the Australian community should Mr Do commit further offences or engage in other serious conduct
Paragraph 9.1.2 of Direction 55 states:
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct;
Mr Do has numerous offences involving the sale of illicit drugs to members of the Australian community. The trafficking and use of illicit drugs causes harm to many of the users of these drugs. These harms, which have also affected Mr Do himself, can be physical, psychological and/or financial. Mr Do’s disregard for other laws (such as road safety) also harms the community in general.
Mr Do suggested that if he did not sell drugs to persons, someone else would do so in his place. His dealings were generally in public thoroughfares although he did have some contacts via mobile phone. He said that he did not sell to underage users but could not give an example of when he refused a sale. The Tribunal accepts that there are many others selling drugs on a relatively small scale in the same way that Mr Do did. However, the suggestion that others would take his place if he did not sell drugs does not change the impact or nature of the harm that Mr Do’s activities would have on the community if he were to engage in further criminal conduct.
Taking into account the nature of the prior convictions for trafficking drugs, the Tribunal finds that there would be significant harm to individuals or the Australian community should Mr Do engage in further criminal conduct similar to that in which he has previously been involved in.
(b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In his evidence to the Tribunal, Mr Do described the circumstances in which he first became part of the drug scene. He started to play truant from school in around year 11. He stated he was being bullied at school but had not told his parents or younger siblings. He initially started skipping a few classes and then whole days. He would leave home at the usual time and take the bus towards the city as if going to school. His school was on the city fringe. However he would take a change of clothes in his school bag and hang around with other young people playing electronic games in games parlours and the like. He was invited to house parties where he first was introduced to smoking heroin. He was then encouraged to sell small quantities on the streets to obtain his own supply of heroin and gain additional monies. Eventually he was expelled from school. He changed schools for year 12 but dropped out without completing the year.
Mr Do had arrived in Australia with his mother and younger brother. Another brother was born after his arrival. He was sent to English classes for a few months before commencing primary school. While his parents and he are Buddhists, his parents sent the boys to Catholic schools. His parents were working hard to make ends meet and create a better life for their children. They were not aware of Mr Do’s dependence on drugs or the extent of his criminal activities for some years.
Mr Do has been drug dependent for much of the time since he commenced using. He told the Tribunal that he only smoked heroin and has never used the drug intravenously. He occasionally used cannabis and ice. He has had some periods of living drug free in the community as well as when he was in prison. The drug tests to which he has been subject while in prison have been negative apart from when he was on remand in 2009. He described the unpleasantness he experienced on withdrawing from regular drug use when incarcerated. His teeth have been badly affected by his heavy drug use which at times was five or six hits of heroin a day.
In terms of employment, Mr Do worked at a McDonald's restaurant for a period of time after his release from youth detention. From 2004 to 2008 Mr Do worked for a paint colour matching business full-time. He said he liked the work. Unfortunately the company closed down with its business going overseas. Mr Do said he smoked heroin occasionally but not regularly during that period. Mr Do’s brother has a food business and Mr Do has worked there. His brother is happy for him to work there again on release.
Mr Do has not spent any time in the community since his most recent incarceration. In prison he has been working in the kitchen as well as growing vegetables. He has discovered that he is a good cook and enjoys making Asian style dishes. He has undertaken developmental courses to assist him to avoid future lapses. He has also undertaken vocational courses.
Records obtained from the Victorian Department of Justice indicate that Mr Do has been motivated to rehabilitate himself upon release following every incarceration and whilst taking part in counselling as part of his CBO (before he stopped attending). When asked why the Tribunal should believe that he would not relapse yet again following release and if allowed to stay in Australia, Mr Do said he had that he now realised the serious consequences that he faced. He admitted he had not taken things seriously enough in the past in relation to CBOs and suspended sentences. The threat of having to leave his family and the country in which he had grown up has made him realise that he has to change. Neither he nor his family were aware that he could be required to leave forever until the issue of the notice of intended cancellation. Mr Do said that he now wanted to settle down like his brother had and live a normal life. The days of partying and considering only his own wants were now behind him. In his statement and oral evidence he conceded that:
38. I know that my record looks bad and that it does not inspire much confidence that I won't just go back to my old patterns. I have an excellent record of good behaviour at Fulham and I have been well treated here. However having my permanent residence visa cancelled was a real shock. I never thought such a thing could happen. I knew that I missed out on getting Australian citizenship when my mother and Phuc [his brother] applied because I had a criminal record but I did not know that it would have such serious consequences for me and my family…
…
40. I have not taken any illicit drugs while at Fulham and I could have easily had access to them from other inmates if I had wanted to but I kept myself busy working in the kitchen and garden as well as doing my TAFE courses. I also exercise at the gym every day. I had decided to put myself into order before my release. I had my teeth fixed so that I can look more presentable. I found it difficult to get work before I went back to Fulham because my teeth looked awful. I applied for dentures but there is quite a long waiting list for dentures at Fulham. I managed to have my old teeth removed in September 2012 and I got my new dentures earlier than normal.
The various reports available to the Tribunal through the respondent’s summons of Victorian Department of Justice records and the nature of the sentencing indicates that there have been differing views on Mr Do’s prospects of rehabilitation. The imposition of CBOs and suspended sentences, even after breaches of earlier CBOs, indicates some optimism on the part of the magistrates and some treaters. However, others providing reports are more sceptical about the likelihood that Mr Do will not re-offend.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.
The Tribunal takes into account that Mr Do has expressed regret over his criminal activities, has undertaken courses in prison and has stated that he is unlikely to re-offend because he is now a mature adult who has learnt from his mistakes. His family members are also of the view that he will not re-offend. However he has a pattern of offending over many years including numerous breaches of court orders despite the consequences of re-offending having been made clear to him.
On the basis of all the material, the Tribunal finds that there is a still a risk that Mr Do will reoffend notwithstanding that he now clearly understands the consequences of re-offending are severe including loss of Australian residency and separation from his family. This, together with the finding that the offences and the nature of his conduct are serious, leads the Tribunal to conclude that the first primary consideration weighs in favour of cancellation of the visa.
(b) The strength, duration and nature of the person's ties to Australia;
Paragraph 9.2.1 of Direction 55 states that the decision-maker must have regard to the following:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
Mr Do arrived in Australia when he was nine years old. He has resided here since then. Apart from two relatively short trips to Vietnam, he has always remained in Australia. Mr Do commenced offending about nine years after his arrival and continued to do so over the years following.
In terms of community activities, Mr Do took part in the activities of the Buddhist Youth Society including participating in the Lion Dance and raising money for charity.
(b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Do’s parents and his two brothers are Australian citizens. Mr Do was not able to obtain citizenship when his mother and middle brother did due to his early convictions. His youngest brother was born in Australia. One of his brothers is married with two young children. All of the family live together in the one property in a Melbourne suburb.
Mr Do’s father provided a statement dated 3 February 2013 and gave oral evidence. He arrived in Australia as a refugee in 1984. He had left Vietnam by boat and spent some time in a Malaysian camp before being accepted for resettlement in Australia. Mr Do’s father obtained Australian citizenship in November 1986. His wife and two small children remained in Vietnam until 1989 when he was able to sponsor them as family migrants to Australia. Another son was born in Australia in 1991.
Mr Do’s father had graduated with a degree in electrical engineering in Vietnam in 1979 and worked in that field before coming to Australia. As he could not speak English on arrival, he had to work in whatever jobs he could. He worked for a car manufacturer for several years. Mr Do’s father and his wife were struggling for many years after arriving in Australia. They did not have much money to spend on luxuries for their children or themselves. They saved hard to move from rental housing to a home of their own.
In relation to his son, Mr Do’s father stated, amongst other things:
10. Phuong was nine years old when he came to Australia. He was a reasonably good student until year 11 and he was not a problem child before that time. He started mixing with a bad crowd of Vietnamese boys. Phuong is a good-natured, extrovert person who likes to be popular. He first started to get into trouble by shoplifting CDs and clothes as well as travelling on trains without a Metcard. We could not afford to buy designer label clothes and Phuong stole such clothes because he wanted to fit in with his friends. Phuong also had his first girlfriend around this time.
11. I did not know my son was a drug addict until he ended up at the Youth Detention Centre. My reaction to Phuong’s behaviour was to shout at him and give him a beating. This was the traditional Vietnamese way of disciplining children who misbehaved. I demanded that he stopped seeing the friends who had led him astray. I realised that this was not effective at stopping Phuong from continuing to see his friends. My wife and I worked full-time and we could not keep an eye on him all the time.
12. I was very shocked when I found out that Phuong had started using cannabis and heroin as early as 1999. I tried to persuade him to do something with his life and to stop trying to destroy himself. Phuong would disappear for days on end and I could not keep on beating and yelling at him for the rest of his life. I did not appreciate that Phuong was a highly sensitive person who did not cope with stress or rejection. He went on a major downhill spiral after his girlfriend broke up with him about four years ago…
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17. We never thought his conduct would put him at risk of being deported from Australia. He did not even get a warning and he was not given any chance to try any form of medical and psychological treatment for drug addiction. I cannot bear to think of what would happen to him if he were forced to return to Vietnam. He does not speak fluent Vietnamese and he cannot read or write it properly. The family we have left in Vietnam are poor and not well equipped to help Phuong. [His mother]… cries every day about Phuong. Phuong calls us every day and I strongly believe that he now understands that his total future is at stake so that he has a strong incentive to change his life for the better. I beg the Tribunal to give him that chance.
Mr Do’s father and his two other sons told the Tribunal that Mr Do’s mother was too emotional to give evidence on his behalf before the Tribunal. She sat through the entire hearing and was seen to be dabbing her eyes from time to time.
Phuc Do (Phuc) , Mr Do’s brother who is less than a year younger than Mr Do, provided a statement dated 3 February 2013 and gave oral evidence. Phuc is married with two children, a daughter who is almost three years of age and a son, six months old. He has his own food business which he started about two years ago. Phuc stated that even though he and Mr Do are close in age they had different interests and friends. He went on to state:
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8. Phuong was a reasonably good student and he particularly excelled at art and maths. Things started to go wrong for Phuong in year 11. He was being picked on by some Anglo Saxon Australian boys because he was Asian and perceived to be a “nerd” as he was polite to teachers and well behaved in class. Phuong told me they used to pounce on him in the toilets. Phuong did not tell his teachers that he was being bullied because he was afraid that the people responsible weould take it out on him and make things even worse.
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10. Phuong did not tell the family about his drug problem or his run-ins with police. It was only when he was held at the custody centre at the Melbourne Magistrates Court before he was sentenced to six months youth detention that I found out he was really in trouble. I received a phone call from the Salvation Army to contact Phuong. I was shocked to find out that he was being held in custody. He begged me not to tell our parents and he went to Court by himself.
11. We could not avoid telling our parents that Phuong was in detention. They were shocked and my father was furious with him. However Phuong did not really tell us much about what was going on in his life…
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13. Phuong really comes into his own when he is with my children… He loves playing with them… I take my children to visit Phuong at Fulham… My wife… and I would have no hesitation in leaving our children in Phuong’s care. I know he would love to get married and have his own children because he has seen how happy it has made me. Family is very important to Vietnamese people and they usually like to work together to secure the family's future. I know some people may think it strange that several generations live in the same house but that is the norm for a lot of Vietnamese people. The extended family plays a vital role in our lives…
14. I have to say we were all deeply, deeply shocked that Phuong’s permanent residency was cancelled so quickly. While Phuong’s criminal record looks quite extensive, he is not a violent criminal who is a danger to society. He was given Community Based Orders on many occasions and placed in a low security prison… It is the breaches of CBOs that make the criminal history look worse than it actually is. It should have been clear to the Magistrates that CBOs were not working for him. I cannot understand why Phuong was not referred to any treatment for his drug addiction before and after his imprisonment.
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17. I think it is absolutely shocking that the Immigration Department would seek to send Phuong back to Vietnam when it was this country that made him what he is. I have read about people with much worse criminal records being allowed to stay in Australia but Phuong was not even given the benefit of a warning to get his act together. The effect this is having on my family is devastating. I can't understand what will be achieved by sending Phuong back to Vietnam. It will punish him and probably be the end of him and it will punish us for the rest of our lives. We already feel awful that we did not help him. I also found it surprising to learn that drug addicts are not given treatment in prison but are left to go cold turkey. They either survive as Phuong has or they just keep taking drugs in prison. I think Phuong should be given due credit for going through withdrawal without any help and that he stayed off heroin.
18. If anyone should be given a chance to prove themselves, I think Phuong does. I know that anyone outside the family will take our view of him as being biased because he is one of us… He is 32 years old and realises how high the stakes are now for him. If he were to be given a second chance, he knows he cannot mess it up again. He knows he cannot go back to mixing with his old friends…
Phi Do, Mr Do’s other brother, provided a statement dated 3 February 2013 and gave oral evidence. He is a university student who also works part-time. He is 11 years younger than Mr Do. Amongst other things, he stated:
4. I have always looked up to my older brother Phuong and I did not realise how bad things had got for him with his drug addiction because he never told anyone in the family about what he was going through….Although he never confided in me, I confided in him. Phuong is a kind-hearted person who is easy to talk to. He is the first person in my family that I came out to as gay…
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7. Phuong has been able to hold down fulltime jobs and apply himself to his work. He has done a couple of courses while at Fulham and I know he is interested in cooking and in hospitality. I think he is very well suited to these jobs because he is outgoing and gets on very well with people. They also utilize his creative side. Phuong has natural artistic ability and he was always good at drawing and painting.
8. I have to say I could not believe it when Phuong’s permanent residence visa was cancelled. It seemed to be such a hard decision because he never got any warning that this would be a likely result of his drug offences. He has grown up in Australia and became a drug addict in Australia because he got in with a bad crowd….
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10. My parents were not up to the task of being able to help Phuong. They did not know how badly addicted Phuong was and do not have the language skills to get the proper help for him. It is part of the Vietnamese culture to keep family problems within the family. Having a drug addict in the family is considered shameful and that it somehow reflects poorly on the rest of the family. It is very like the stiff upper lip approach of Anglo Saxon culture where you don’t complain and just get on with it. My father is like that and is somewhat of a disciplinarian. I am not surprised Phuong did not want to confide his problems to him. My mother is very soft and tends to start to cry if any of us are unhappy. Phuong is very close to her but did not want to upset he with his problems.
11. I appreciate that the Tribunal has to be satisfied that Phuong is capable of change and that he will not revert back to his old ways and social circle. Now that we are fully aware of the nature of his problems, we are able to take a more pro-active approach to help him; something my family has not taken before. I investigated what sort of treatment options were available to someone like Phuong….
In his oral evidence, Phi informed the Tribunal about the contact that he and Mr Do had with relevant services and possible options upon release. Phi went on to say:
21…Phuong is not a violent, dangerous criminal. He is a fundamentally good person who has done some stupid and bad things. The nature of his custodial sentences and where he has been confined show that the Court did not consider him to be deserving of a long incarceration in a high security jail.
22. Phuong has some real option now and he knows what is at stake if he messes up again. My family and I are confident that he can get through his problems. Phuong has not been on heroin since he has been at Fulham and does not crave it. If he is released, he will be taken home to a loving, supportive family that is fully aware of his treatment options.
23. Nothing positive will be achieved by forcing his permanent removal from Australia and separation from his family. If he is forced to go, we will all be punished for the rest of our lives for failing to help Phuong…
The Tribunal takes into account that Mr Do has spent half of his childhood and, indeed most of his formative years in Australia and began offending some nine or ten years after his arrival here. The Tribunal concludes that Mr Do has close ties to Australia having lived here for 23 of his 32 years and having all his immediate family in Australia.
In all the circumstances this primary consideration weighs against cancellation of the visa.
(c) The best interests of minor children in Australia
Mr Do does not have any children of his own. He and his family members described how close he is to his brother’s children who were present at the Tribunal during the hearing. The younger child is only a baby. Mr Do’s niece interacted with him after he had given his evidence in a manner that indicated she was comfortable and happy to be with him.
However, the children are young and have their parents, grandparents and another uncle to take care of them. The respondent contended that the available evidence does not indicate that there are any minor children in Australia who have a relationship of critical importance with Mr Do.
The Tribunal accepts that Mr Do enjoys a relationship with his young niece and hopes to develop a significant relationship with his nephew as well. However as submitted by the respondent, Mr Do is not a primary carer or a parental substitute. The Tribunal finds that this primary consideration weighs neither for nor against cancellation of the visa.
(d) Whether Australia has international non-refoulement obligations to the person.
Paragraph 9.4(1) of Direction 55 states:
In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
Mr Do did not make any claims which require assessment in relation to Australia's international non-refoulement obligations, nor are any claims apparent from the material available to the Tribunal. Consequently the Tribunal finds that this primary consideration weighs neither for nor against cancellation of the visa.
Assessment of other considerations
Paragraph 10(1) of Direction 55 provides a list of non-exhaustive other considerations that must be taken into account where relevant:
(a) Effect of cancellation of the person's visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
The impact of the cancellation has been described earlier in these Reasons for Decision. Mr Do’s parents and siblings are Australian citizens. They have made their lives here. They have described the effect that Mr Do’s deportation would have on them as a family.
The Tribunal concludes that cancellation of Mr Do’s visa would have an adverse effect on his parents, siblings and other family members living in Australia.
(b) Impact on Australian business interests
There does not appear to be any impact on Australian business interests of cancellation of Mr Do's visa. Mr Do has worked in his brother’s food business and was described as having positive interactions with the clients. However, given that Mr Do’s brother has other family members working there as well as himself and an employee, the Tribunal is not satisfied that there would be an impact on Australian business interests if Mr Do was not a participant. Mr Do does not have a financial interest in the business.
(c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
As was pointed out by the respondent, there has not been any consultation with any victims. The Tribunal is not in a position to comment on the impact on any particular member of the community.
(d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(i)The person's age and health;
(ii)Whether there are substantial language or cultural barriers; and
(iii)Any social, medical and/or economic support available to them in that country.
Mr Do has lived in Australia since he was nine years old. While he had some basic education in Vietnam, his written skills are poor. He can speak to his parents in Vietnamese but has had no formal instruction in the written or oral language since leaving Vietnam.
Mr Do told the Tribunal that his paternal grandmother was still living in Vietnam but that she was 85 years of age and in poor health. Mr Do’s father said that his mother is frail and would be unable to assist her grandson if Mr Do was deported to Vietnam. Mr Do’s father has two sisters remaining in Vietnam. They live outside Ho Chi Minh City and are described as poor. There has not been much contact between Mr Do’s father and the sisters since he came to Australia. When Mr Do visited Vietnam, he and his brothers stayed in a hotel.
The Department of Justice’s medical records reveal that Mr Do has been treated for asthma. He was a heavy smoker. Mr Do told the Tribunal that he has fewer asthma attacks these days and his health has improved now that he is eating properly and exercising regularly. Mr Do’s heavy drug usage primarily through smoking heroin has had a detrimental effect on his teeth. However, he has now had that problem rectified through extraction and dentures.
The Tribunal takes into account that Mr Do has not lived in Vietnam as an adult and he would face challenges in beginning a new life in that country. His family members, who are all Australian citizens, are unlikely to see him often as they would not be in a position to regularly visit Vietnam. There would be some language barriers as Mr Do’s grasp of Vietnamese has not developed beyond early schooling and a family environment. That, in turn, may affect his employment prospects.
It is unlikely that Mr Do’s grandmother or aunts would be of any real assistance to him were he to return to Vietnam. In relation to medical support, the Tribunal understands that while there is medical support available to Vietnamese citizens, it is not always to the equivalent level of that available in Australia.
On balance, the Tribunal finds that Mr Do would face impediments in establishing himself in Vietnam.
CONCLUSION REGARDING OTHER CONSIDERATIONS
Although he speaks some Vietnamese and has some relatives in Vietnam, Mr Do is likely to have some difficulty in establishing himself there. His family members would be affected emotionally if Mr Do was removed as they are a fairly close knit family. The Tribunal concludes that the other considerations weigh against cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs in favour of cancellation, and the second primary consideration concerning Mr Do's ties to Australia weighs against cancellation. The third and fourth primary considerations do not have any practical application.
The Tribunal has concluded that the other (not primary) considerations weigh against cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.
This case requires the weighing up of a number of factors in favour of and against the respondent exercising its discretion to cancel Mr Do’s visa. Mr Do's record of criminal convictions over several years for similar crimes does not of itself inspire strong confidence in his ability to reform. On the other hand, there are many people in the Australian community who have succumbed to drug dependence and committed crimes to pay for their habit. Mr Do has had periods of abstinence since 1999. He has worked for periods between offences. He now has a very high level of motivation to avoid lapsing back into drug use and trafficking, given his new understanding of the consequences of failing to do so. His ties to the Australian community remain strong and he is fortunate to have a family that will do all that they can to help him avoid another relapse.
After considering all the circumstances of the primary considerations and the other considerations the Tribunal finds that the factors against cancellation outweigh the factors in favour of cancellation of the visa, so the discretion not to cancel the visa should be exercised.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion to cancel Mr Do's visa pursuant to section 501(2) of the Migration Act 1958 not be exercised.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ..............................[sgd]..........................................
Associate
Dated 8 March 2013
Date of hearing 27 February 2013 Counsel for the Applicant Ms R Germov Agent for the Applicant Mr J Ta Advocate for the Respondent Mr S Kikkert Solicitors for the Respondent In-House Litigation Section, DIAC
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