Re Do and Minister for Immigration and Border Protection
[2016] AATA 390
•14 June 2016
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390 (14 June 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0871
Re
Hung Van Do
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Bernard McCabe
Date 14 June 2016 Place Brisbane The decision under review is affirmed.
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Deputy President Bernard McCabe
Catchwords
MIGRATION – decision not to revoke mandatory cancellation – where applicant is New Zealand citizen – where applicant has substantial criminal record – cultivation of cannabis – theft – primary considerations weigh against revoking cancellation – decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 501(3A), 501CA(4)
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancelation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Bernard McCabe
14 June 2016
Mr Hung Van Do is a citizen of New Zealand who has been living in Australia on and off since 2005. His visa was cancelled on 11 June 2015 pursuant to s 501(3A) of the Migration Act 1958 (Cth) after he was convicted of a serious criminal offence and sentenced to serve two and half years in gaol. He asked the Minister to revoke the cancellation pursuant to s 501CA(4). The Minister’s delegate declined to do so, and the matter has now come before the Tribunal.
I have decided it is not appropriate to exercise the power to revoke the cancellation decision. That means the applicant is unsuccessful. I explain my reasons below.
The background to the application
Mr Do was born in Vietnam but lived in New Zealand for a number of years before moving to Australia in 2005 when he was 17 years of age. There is evidence that Mr Do had an unsettled life in New Zealand: Mr Do’s mother lives in Vietnam and his father left Mr Do behind in New Zealand to reside with friends when the father migrated to this country.[1] Mr Do came to this country in due course and initially resided with his father in Sydney before moving to Melbourne. He worked in a restaurant for a time. Thereafter he obtained work in the building industry, although it seems he was often unemployed. He resided in Canada between March 2006 and April 2007. He also had a number of trips to visit his mother in Vietnam, and one short trip to New Zealand to meet a young woman he contacted on the internet.
[1] Mr Do spoke about his living circumstances in New Zealand when he gave oral evidence. The judge who dealt with Mr Do in 2014 also referred to difficulties Mr Do experienced as a youth: see exhibit one at p 92.
Mr Do said he often experienced financial difficulty. He says that difficulty led to his first brush with the law in 2008 when he was convicted of the offence of driving an unregistered and uninsured motor vehicle. Mr Do said in his oral evidence that he could not afford to pay for the registration of the vehicle.
The applicant’s criminal history was set out in a National Police Certificate (exhibit one at pp75ff). There are convictions in New South Wales for:
·Driving an unregistered and uninsured vehicle, September 2008;
·Custody of a knife in a public place and possession of a prohibited drug, December 2008;
·Custody of a knife in a public place, February 2009; and
·Break and enter a house and steal, larceny and failure to appear in accordance with a bail undertaking, September 2009.
There are also convictions in Victoria. The first, in November 2012, arose out of Mr Do’s attendance at a cockfight. He was charged with being found in a common gaming place. But worse was to follow. Mr Do said he owed around $10,000 to unsavoury characters. After returning from a trip to Vietnam, he accepted an offer to act as a ‘crop-sitter’ in a house where a criminal syndicate was growing cannabis plants on an industrial scale. He commenced that role in January 2013 and continued working until the crop was discovered by authorities after a fire at the house in June 2013. Mr Do said he was paid $18,000 for the work, which more than covered his debts. Mr Do was not at the house when police raided but he became aware they knew of his role. He surrendered to police and pleaded to guilty to one charge of cultivating a commercial quantity of cannabis and another charge of theft. (He was accused of stealing the electricity used in the grow house.)
The County Court judge sentenced Mr Do to 30 months in prison in respect of the cultivation charge and 12 months in prison in respect of the theft charge. The two sentences were to be served concurrently. Part of the total sentence was suspended.
The applicant was gaoled and thereafter removed into immigration detention. He has been there ever since. He was informed of the visa cancellation but he wants to stay in this country. To that end, he has asked the minister to revoke the cancellation.
The power to revoke a visa cancellation
The Minister was obliged to cancel the applicant’s visa on character grounds because the applicant was convicted of an offence which has resulted in the imposition of a prison sentence of 12 months or more. If he is to stay in this country, the applicant must satisfy the decision-maker – the Minister’s delegate or the Tribunal – it is appropriate to revoke the cancellation decision: s 501CA(4).
When considering whether to revoke the cancellation decision, I am required to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction). The Direction sets out the binding policy of the government and includes a number of general introductory statements describing the expectation that non-citizens will obey Australian laws and behave themselves if they wish to retain the privilege of coming to or remaining in this country.
The operational provisions of the Direction are found in Part C. Clause [13] identifies three primary considerations which must carry particular weight, although other considerations may also be relevant. I will deal with each in turn.
Protection of the Australian community
Clause [13(1)] restates the government’s commitment to protecting the Australian community from harm at the hands of non-citizens. Clause [13(2)] requires that I then focus on two concerns in particular. The first of these is the nature and seriousness of the applicant’s conduct to date.
The applicant has a number of criminal convictions since 2008, culminating in the very serious charges in relation to the drug cultivation. Most of the offences are of a relatively minor nature, although I note there is a trend of increasing seriousness between 2008 and 2014. A number of the convictions involve dishonesty, and the two weapon convictions are worrying – because of the possibility of violence, and because the applicant did not learn after the first conviction that he was not allowed to have a weapon. I also note the applicant failed to appear at least once in accordance with his bail undertaking. The drug cultivation conviction is altogether more serious. The grow house was described by the sentencing judge as “a substantial criminal venture with a degree of sophistication”: exhibit one at p 91. While the applicant played a relatively minor role in the larger venture, he played that role over approximately five months. During that period, he attended the house regularly. He told me at the hearing that he was not required to attend the house regularly – he did not live there, for example – but I note the sentencing judge pointed out the applicant’s dog was present at the property when the crop was discovered.[2] That rather suggests he was routinely present. He was involved in the theft of the power used in the house.
[2] Director of Public Prosecutions v Hung Van Do [2014] VCC 2257 at [8].
The sentencing judge pointed out the maximum term of imprisonment for a cultivation offence is 25 years. Maidment CCJ said the applicant was “an offender at the lower end of the range but not at the bottom of the range”.
The frequency of the applicant’s criminal offending, the gradually increasing seriousness of that offending and the sentencing judge’s remarks and sentence in 2014 are all matter of serious concern.
I am also required to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The applicant insists he has had the opportunity to reflect on his misbehaviour. He says he is remorseful. He said he now knows what he did was wrong, and he acknowledges the threat of visa cancellation would be a powerful disincentive to further offending. He said he has taken the opportunity while in prison to improve his English language skills and complete courses that will equip him to obtain and hold a job. Curiously, in his request for revocation addressed to the Minister (exhibit one at p 79), the applicant said of the cultivation charge: “This was my first offence”. He added: “I believe I made one wrong choice and want to be given another chance to work hard and honestly in Australia.”
The cultivation charge was not the applicant’s first, as I have pointed out. It is also wrong to say he made one wrong choice. He has made a series of bad choices. When asked about this, the applicant blamed his poor command of English. In any event, I accept the applicant is genuinely remorseful for his conduct and fearful of being required to leave Australia.
I note the sentencing judge said the applicant was “a good candidate for rehabilitation” (exhibit one at p 95) although it appears from the transcript that his Honour was not aware of the applicant’s criminal record in New South Wales: see exhibit one at p 90 at [2]. I accept those remarks offer some encouragement. But Mr Hawker, who appeared on behalf of the respondent, pointed out the applicant had a track record of breaking the law when he fell into financial difficulty. That is worrying. He has also been involved in a criminal milieu. It would be easy enough to see him falling back into that lifestyle, and the consequences may yet be more serious.
The applicant has not undertaken any counselling or rehabilitation courses. There is no other evidence of reform in the form of a psychologist report or other testimony from an independent and authoritative source. (I note the applicant has provided a letter of support from his mother. While that letter speaks of her son positively, I cannot lend it much weight.)
The community’s tolerance for risk will be lower where the prospect of harm is greater. I accept there is not a high risk of the applicant re-offending, but the consequences of further offending may yet be more serious. In all the circumstances, I am satisfied this primary consideration counts firmly against the applicant.
The best interests of minor children in Australia affected by the decision
There are no minor children in Australia affected by the decision. This primary consideration does not count for or against the applicant.
The expectations of the Australian community
The Direction says the Australian community expects non-citizens to obey the law. It goes on to say the nature of the offending behaviour might be such that the community would not expect the decision-maker to revoke the cancellation.
A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
I note the applicant has lived in Australia for most of his adult life, although he has also spent time overseas in Canada and Vietnam. I also acknowledge the sentencing judge’s remarks about the applicant’s good prospects for rehabilitation. The applicant has limited ties to this country: he said in his oral evidence that he does not have regular contact with family members who live here. He has not been integrated into the wider community. I acknowledge the applicant has not been convicted of an offence involving violence or sexual misconduct or one of the other categories of offence that are regarded as being particularly obnoxious. I am also conscious of the state of the debate about the decriminalisation of cannabis.
While there is debate within the community about how to deal with marijuana use, I am satisfied there is little patience for individuals who cultivate the drug on an industrial scale in defiance of the law. Mr Do may have been a minor player in the larger enterprise, but he made a deliberate choice to play that role over a lengthy period. He flouted the law because it suited him to do so. He did not act impulsively, or alone. I am satisfied the community would be surprised if he were permitted to stay. In those circumstances, I am satisfied the third primary consideration counts against the applicant.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges (at [14]) other considerations might also be relevant.
There are no international non-refoulement obligations at stake in this case. I was not provided with any evidence about the impact of Mr Do’s removal on any Australian business interests. There is no evidence of any impact on victims.
Mr Do has relatively weak ties to Australia. I have already observed he does not have regular contact with those members of his family who reside here; while he spoke of a friend with whom he proposed living and working if he were allowed to remain, there is no evidence of other substantial familial, social or community ties to this country. I accept the applicant has lived in Australia since late 2004 or 2005 when he came here at the age of 17, but he has also spent a substantial amount of time overseas during that period. He began offending relatively soon after he arrived and he continued to engage in criminal conduct throughout his stay in this country. I am not satisfied his ties to Australia count strongly in his favour.
There are few impediments to Mr Do’s removal from Australia. He said in his oral evidence that he does not have strong ties in New Zealand, but there is no reason to doubt he would be in a position to obtain work and live there. There is no reason to doubt he is eligible to use the social welfare and health care systems in that country. He is in good health and he speaks relatively good English. There are no substantial barriers that would prevent him resuming his life in New Zealand.
Conclusion
I have already indicated the first and third primary considerations count against the applicant. The second primary consideration does not count either way. The other considerations either do not count, or count only weakly in the applicant’s favour. In those circumstances, it would not be appropriate to revoke the cancellation decision. The decision under review must therefore be affirmed.
31. I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.
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Associate
Dated 14 June 2016
Date of hearing
8 June 2016
Applicant
By video-link
Solicitor for the Respondent
Mr M Hawker, Sparke Helmore
89