Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 938

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 938

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/773

GENERAL ADMINISTRATIVE DIVISION		)
Re		Hung Huynh

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date3 September 2004

PlaceSydney

Decision The decision under review is affirmed.

................................

Professor GD Walker           
  Deputy President  

CATCHWORDS

IMMIGRATION – VISAEX – on-shore visa application – cancellation of visa – substantial criminal record – discretion that the Tribunal may exercise where a visa has been cancelled – examination of the Applicant’s criminal record – examination of the Applicant’s family situation – necessity to consider the protection and expectations of the Australian community – held that the applicant fails the character test by reason of s 501(6)(a) because he has a substantial criminal record – held that offences involving drug dealings are to be considered as very serious – found there is a risk of recidivism – found that deterrence points in favour of cancellation of the applicant’s visa – found that the Australian community would not expect that a person who has demonstrated repeated disrespect for the law should be permitted to remain in Australia – found there was no evidence of rehabilitation with sufficient weight to outweigh the protection and expectations of the Australian community – found that the applicant will suffer some hardship – held decision of the Respondent affirmed.

Migration Act 1958 ss 499, 501, 501(6)(a)(i), 501G, 502, 502

Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36

Re Van Hiep Le and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 535

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

3 September 2004	Professor GD Walker, Deputy President
Summary

1.      The applicant, Hung Huynh, came to Australia from Vietnam on 13 November 1991 when he was 16.  On 18 December 1997, Mr Huynh was granted a resident return visa valid for five years.  Between 1994 and 2003, Mr Huynh was convicted of a number of serious drug related offences.   On 29 July 2003, Mr Huynh was sentenced to a term of imprisonment totalling three years, his earliest date of release being 26 May 2006.  He is currently being held at the Cessnock Correctional Centre.

2.      On 17 June 2004, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) informed Mr Huynh that he was cancelling his visa on the basis that he did not pass the character test because of his substantial criminal record and having regard to his past and present criminal conduct and that upon completion of his sentence, he would be held pending his removal from Australia.  This is the decision to be reviewed by the tribunal.

Background

3.      Mr Huynh was born in Vietnam on 10 February 1975 and is aged 29.  He is a citizen of Vietnam.  He arrived in Australia on 13 November 1991 as a permanent resident.  On 18 December 1997, Mr Huynh was granted a resident return (subclass 155) visa valid for five years.  On 28 December 1997, Mr Huynh departed Australia, returning on 19 February 1998.

4.      Between 1994 and 2003, Mr Huynh committed a number of criminal offences, including the following:

Court Date	Court	Offence	Sentence
7/7/1994	Bankstown Local Court	Offensive language	Fined $34, court costs $46
9/1/1995	Bankstown Local Court	1. Malicious damage property 2. Affray	1. Fined $200, court costs $46 (and witness expenses and compensation) 2. Fined $300, court costs $46
22/2/1995	Bankstown Local Court	1. Affray 2. Assault	1. 140 hours CSO 2. $300 two year good behaviour bond
12/4/1995	Liverpool Local Court	1. Supply prohibited drug 2. Possess prohibited drug	1. $1000 two year good behaviour bond and supervision of NSW Parole Board. Order not to enter Cabramatta 2. Fined $300, court costs $46
5/7/1995	Liverpool Local Court	1. Supply prohibited drug 2. Goods in custody	1. $1000 two year good behaviour bond 2. Fined $150, court costs $46
8/9/1995	Liverpool Local Court	1. Possess prohibited drug (heroin) 2. Goods in custody 3. Supply prohibited drug (heroin)	1. Rising of the Court 2. Two months fixed term of imprisonment 3. Six months fixed term of imprisonment
11/4/1996	Bankstown Local Court	1. State false name 2. Drive manner dangerous	1. Fined $100 2. Fined $500, court costs $50, disqualified from driving nine months
29/8/1996	Burwood Local Court	1. Supply prohibited drug (heroin) 2. Resist arrest 3. Assault police	1. Six months fixed term (reduced on appeal at Parramatta District Court on 16 June 1997 to four months fixed term) 2. Three months fixed term (reduced on appeal at Parramatta District Court on 16 June 1997 to one month fixed term) 3. Six months fixed term (reduced on appeal at Parramatta District Court on 16 June 1997 to one month fixed term)
18/6/1997	Fairfield Local Court	1. Supply prohibited drug (heroin) 2. Goods in custody	1. 12 months minimum term of imprisonment (on appeal in the Campbelltown District Court on 2/9/1997 reduced to minimum term of six months, one week and three days, additional term with conditions six months, release subject to supervision 2.Six months fixed term (on appeal to the Campbelltown District Court on 2/9/1997 reduced to six months, one week and three days to be served concurrent with 1., additional term with conditions six months, release subject to supervision)
18/6/1997	Fairfield Local Court	1. Supply prohibited drug 2. Goods in custody	1. 12 months minimum term, additional term four months (reduced on appeal in the Campbelltown Local Court on 2/9/1997 to six months one week and three days, additional term with conditions six months, release subject to supervision) 2. Six months fixed term (reduced on appeal in the Campbelltown Local Court on 2/9/1997 to six months one week three days to be served concurrent with 1., additional term with conditions six months)
16/9/1998	Fairfield Local Court	Enter enclosed land not prescribed premises without lawful excuse	Fined $200, court costs $51
23/9/1998	Fairfield Local Court	Enter enclosed land not prescribed premises without unlawful excuse	Fined $400, court costs $51
20/1/1999	Fairfield Local Court	1.Custody of a knife in a public place 2. Enter enclosed land not prescribed premises without lawful excuse 3. Unlawfully possess etc a prescribed restricted substance 4. Possess prohibited drug 5. Resist or hinder Police officer in execution of duty	1. Fined $300, court costs $52 2. Fined $200 3. Fined $100 4. $1,000 or two years not to go within 3km of CBD 5. Fined $300
21/1/1999	Burwood Local Court	Possess prohibited drug	Warrant to issue
16/3/1999	Fairfield Local Court	Possess prohibited drug	Fined $1,000, court costs $52
7/7/1999	Fairfield Local Court	Goods in personal custody being reasonably suspected of being stolen	Fined $400, court costs $52
20/9/1999	Fairfield Local Court	1. Supply prohibited drug quantity T2 2. Intend to repeat indictable offence	1. Minimum term 15 months, additional term of five months (conviction confirmed on appeal by the Campbelltown District Court on 5/11/1999) 2. Fixed term six months (conviction confirmed on appeal by the Campbelltown District Court on 5/11/1999)
5/12/2000	Fairfield Local Court	Enter prescribed premises without lawful excuse	Fined $500, court costs $56
10/5/2001	Fairfield Local Court	Supply prohibited drug quantity T2	12 months imprisonment, non-parole period of six months  (conviction confirmed on appeal by the Penrith District Court 15/6/2001)
29/1/2002	Liverpool Local Court	1. Refuse direction to move on 2. Use offensive language in/near public school	1. Fined $200, court costs $58 2. Fined $200
27/2/2002	Liverpool Local Court	1. Refuse direction to move on 2. Resist officer in the execution of duty	1. Fined $200 2. Fined $200, court costs $58
29/7/2003	Parramatta Drug Court	1. Supply prohibited drug 2. Supply prohibited drug	1. Fixed term one year and six months 2. 18 months imprisonment with non-parole period of six months (Convictions confirmed on appeal by the Parramatta District Court on 29/7/2003)

5.      On 3 April 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Character Section, advised Mr Huynh that the Minister was personally considering cancelling his visa because of his substantial criminal record and past and present criminal conduct, and inviting him to comment (G10).    On the same day, Mr Huynh acknowledged receipt of this letter but made no comment about the Minister’s intentions.

6.      On 29 April 2003, an officer of DIMIA’s New South Wales Character Section advised Mr Huynh that a delegate of the Minister would be making the decision as to whether or not to cancel his visa and that Mr Huynh’s sentence administration report provided by the Department of Corrective Services on 4 April 2004 would be taken into account in making the decision (G11).  On 3 December 2003, Mr Huynh was further advised that the decision-maker would also be taking into account his New South Wales criminal history and a Department of Corrective Services Sentence Administration Report dated 2 December 2003 (G12).  Mr Huynh acknowledged receipt of this letter on the same day.

7. On 27 May 2004, a delegate of the respondent decided to cancel Mr Huynh’s visa on the basis of his substantial criminal record and past and present criminal record and having decided to exercise her discretion under s 501(2) of the Migration Act 1958 (“the Act”) to cancel his visa (G5).  On 17 June 2004, Mr Huynh acknowledged that he received the decision record and information about his review rights (G2).  On 25 June 2004, Mr Huynh lodged an application for a review of the decision by the tribunal.

8. At the hearing of this matter, the applicant appeared in person and the respondent was represented by Avinesh Chand, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”), taken into evidence as Exhibit A1, together with the evidence submitted by the parties at the hearing. Mr Huynh gave oral evidence.

Relevant Law and Policy

9. Under s 501(2) of 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 he does in fact pass 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 is met. The relevant grounds in the current matter are s 501(6)(a) s 501(6)(c(i). Section 501(6)(a) provides:

(a)the person has a substantial criminal record (as defined by subsection 7));

…

”Substantial criminal record” is defined in s 501(7) to include a person who “has been sentenced to a term of imprisonment of 12 months or more”.

10. Section 501(6)(c)(i) states:

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct

…

the person is not of good character; …

11. 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. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. Section 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation, under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, they exercise the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

13. In the present case, Mr Huynh does not pass the character test because of his “substantial criminal record”, having received on 20 September 1999, a term of imprisonment of 15 months with an additional term of five months for the supply of a prohibited drug (heroin) (the sentence being confirmed on appeal); on 10 May 2001, a term of imprisonment of 12 months for supplying a prohibited drug (the sentence being confirmed on appeal); and on 29 July 2003, two terms of imprisonment of 18 months respectively for two counts of supplying a prohibited drug. The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(1) not to cancel Mr Huynh’s visa.

Evidence

14.     Mr Huynh gave oral evidence in person.  A Vietnamese interpreter was sworn in to assist the witness, who speaks only very basic English.

15.     In his oral evidence to the tribunal the applicant described his early life and how he came to Australia at the age of 17 (the other evidence indicates that he was 16).  That part of his evidence is summarised in paragraph 40 below.  He acknowledged the seriousness of the three deportable offences of which he had been convicted and explained that he became involved with drugs at a time when he was depressed over his father’s death two years after the applicant arrived in Australia.  He took to spending a great deal of time with friends who led him into drug abuse.  Once he became addicted to heroin, he became involved in drug-related crime solely in order to support his heroin habit. 

16.     In 2003 he was participating in a drug rehabilitation program pursuant to a court order but was expelled from the course when he was found with a female visitor in his room.  Subsequently he became involved in supplying drugs again.  He enrolled in a drug rehabilitation program for a second time while in prison, and on this occasion completed it successfully, having had at the time of the hearing no contact with drugs for approximately a year.  While in prison he also earned a forklift driver’s licence and during the period when he was free he worked as a forklift driver at the Flemington fish markets.  Apart from a period of several months when he worked in a timber yard, this seems to have been his only significant work experience.           

17.     The applicant spent two months in Vietnam in 1997-1998 to take care of his maternal grandmother who was sick.  While in Da Nang, where his grandmother lived, he made contact with his cousin and met a number of other people.  The main obstacle to developing wider contacts he said, was that everyone there was required to work long hours.  Apart from the cousin, who now has his own family, the applicant does not have any family in Vietnam now. 

18.     When his grandmother died in 2003, he became depressed and resorted again to drug abuse.  Nevertheless, he maintains that he has not touched any illegal drugs for a year. 

19.     Apart from the forklift operator qualifications and the drug rehabilitation programs, he has not undertaken any other rehabilitation work, he says, because he was continually being transferred between prisons and had no opportunity to take part in the training programs that were offered. 

20.     He said that he came to Australia at 17 and became caught in drug use, but is now older and more mature.  He had long meant to break the drug habit and did so once he had the opportunity to do.  He said that he wanted a chance to restart his life and become a good citizen. 

21.     No other oral evidence was called.  

Application of the Law and Findings of Fact

22. As stated above, there is no dispute, and I find accordingly, that Mr Huynh does not pass the character test by reason of s 501(6)(a) of the Act because he has a “substantial criminal record”, defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. As stated above, Mr Huynh has been convicted of a number of drug related offences for which he has been given terms of imprisonment, three of which were greater then 12 months.

23. The issue for the tribunal then is whether to exercise its discretion under s 501(1) to decide, nevertheless, not to cancel Mr Huynh’s visa. In so doing, the tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

24.     Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

25.     Examples of what the Government views as serious offences are set out in paragraph 2.6.  These include, in subparagraph (a) drug-related crime, (b) organised criminal activities and (n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.

26.     Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. 

Protection of the Australian Community

27.     The first factor to be considered under this heading is the seriousness and nature of the conduct involved.  In this case the applicant has on three occasions been sentenced to terms of 12 months or more imprisonment for offences involving the supply of prohibited drugs.  He has received several other custodial sentences for drug dealing, including supplying heroin.  Paragraph 2.6 of the direction states that drug dealing offences are to be treated as very serious.  It also mandates that crimes involving violence or the threat of violence should be treated in the same way.  The applicant has convictions of assault and affray dating back to 1995, but the bonds and penalties indicate that they were not major offences.  Nevertheless, the drug convictions remain and are to be treated as very serious.  As Brennan J said in Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36 at 39,

The criminal sale of heroin is an offence which raises a strong case for deportation:  whether the offender be a pusher who seeks a profit from a loathsome trade, or whether he be an addict who seeks merely to maintain his supplies of the drug.

28.     Next, the tribunal is to consider the risk of recidivism.  This applicant is a repeat offender who has been regularly before the courts since 1994.  After receiving several bonds and fines which should have served as warnings to him, he earned his first sentence of imprisonment at the age of 20, and has spent much of the last five years in custody.  The offences for which he was sentenced on 10 May 2001 were committed while he was subject to parole obligations.

29.     On his second attempt at a drug rehabilitation course he has overcome his problem with heroin and has been free of it for a year.  He says he has not had the opportunity of engaging in other rehabilitation programs because he has been continually moved from one prison to another.  He has told the tribunal that prison has given him “the time and support to think about my mistakes and misfortunes.  I now understand that life is more valuable than what I was going through”, and asks to be given a last chance to become a better citizen.  He is now aged 29.  But even if his words are sincerely meant (and I think they are at this point), such words alone, after a decade of wrongdoing, can provide no reliable assurance against further lawbreaking in the future. 

30.     Paragraph 2.10(b) of the direction states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of past behaviour.  On that criterion alone, it must be considered that there is a risk that the applicant will engage in further unlawful conduct in the future.  He states that both his original steps into drugs and crime and his relapse in 2003 occurred because he was depressed over the death of his father and grandmother respectively.  That suggests a risk that he may offend again if he becomes depressed by other adverse events in the future. 

31.     The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa “(Direction No 21 para 2.11).

32.     Criminology and social science research indicate that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed.  The findings of recent Australian empirical research “represent important opposition to the continuing prevalence of simplistic sociological analysis of imprisonment and recidivism, which is often based on ad hoc theorizing and limited empirical evaluation … The significance of the clearance rate…, a measure of the probability of punishment, suggests a significant negative deterrent effect for all crime categories considered …. An increase in both the probability of punishment and the severity of punishment appears to have a significant negative impact on crime” (P M Bodman, C Maultby, “Crime, Punishment and Deterrence in Australia: A further Empirical Investigation”, ((1997) 24 International Journal of Social Economics 884, 896).  Deterrence, and the need to maintain a visible probability of sanctions, point in favour of cancelling the applicant’s visa in this case. 

Expectations of the Australian Community            

33.     The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia.  Failure to do so may make it appropriate to cancel such a person’s visa.  “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.

34.     The applicant has engaged in continuous criminal conduct over a decade.  There is no evidence that he has ever engaged in any sustained lawful work, or has undertaken any post-school education or training other than the forklift driver’s licence he earned in prison.  His contribution to Australian society has been almost entirely negative.  The Australian community would expect that a person demonstrating repeated disrespect for the law and who is repeatedly convicted for drug-related offences should not be permitted to remain in Australia and that his visa should be cancelled.  This consideration therefore also points in favour of cancellation of the applicant’s visa. 

The Best Interests of the Child

35. There is no evidence that the applicant has any children or that any child would be affected by a decision under s 501(2).

Other Considerations

36.     Having applied the three primary considerations, the tribunal is then required to take into account a number of other secondary matters which, though generally given less individual weight than the primary considerations, may have a bearing on the appropriate decision.  The relevant ones in this case are those in paragraph 2.17 (a), (c), (d), (g) and (j).  The first three relate to the disruption of the non-citizen’s family and the degree of hardship they would suffer, including whether immediate family members are able to travel overseas to visit the non-citizen. 

37.     The applicant’s family in Australia comprises his mother and four brothers and sisters. He is unmarried and not in any de facto marriage.  One can presume that his mother would suffer substantial emotional distress if the applicant were deported to Vietnam, although in view of the suffering that must have been caused to her by his criminal activities and terms of imprisonment, one can also take it that she would be somewhat relieved if he were able to make a fresh start in his native country and avoided attracting the adverse attention of the authorities there.  It is likely also that she could from time to time travel to Vietnam to visit him. 

38.     His mother also states that his removal would also have an adverse effect on his brothers and sisters who, she says, have grown up with a strong bond between them and him.  As against that, it should be noted that he did not arrive in Australia until he was 16 and lived in the family for approximately four years before undertaking his first prison sentence. 

39.     There is little objective evidence of rehabilitation (other than as regards drugs) or recent good conduct on the applicant’s part (paragraph 2.17(h)).  He claims that he is a reformed character, but there is nothing to corroborate his statement and certainly nothing of sufficient weight to outweigh the first two primary considerations. 

40.     The circumstances of his early life do, however, command some compassionate consideration.  He was born in Vietnam two months before the invading North Vietnamese army captured Saigon.  His parents managed to escape in 1980, but left him behind with his grandmother because they feared that the voyage would be too dangerous for him.  His parents spent about five years in a refugee camp in Hong Kong, unable to communicate with him either by telephone or letter.  It was not until they finally reached Australia that they were able to make contact with him.  His grandmother was poor and they barely managed to survive, while the applicant himself received no education until he was nine because his grandmother was not able to afford it, there being no free education in Vietnam.  He was mocked by other children because his parents had left without him and it was to be 11 years before they were able to sponsor him to come to Australia.  He could no longer recognise his parents and knew them only from his grandmother’s description.  Two years after his arrival, his father died, throwing the family into turmoil.  It is not hard to imagine how a little boy of five must have felt when he believed his parents had abandoned him and he had to endure the taunts of other children on that account.  The whole experience, leading up to his father’s death, must have left deep emotional scars.  It is a pitiable story, but unfortunately only one of many millions produced by the totalitarian regimes of the twentieth century.  Most people who suffered in that way have not turned to drugs and crime.  And while the applicant’s young life was tinged with tragedy, it is also possible that his own activities as a drug dealer may have helped to bring tragedy into the lives of others.  While one might make allowances for his unfortunate background, it appears from his record of convictions that the magistrates who heard the cases arising out of his earliest offences did so. 

41.     As the applicant has lived in Australia since 1991, he would suffer some hardship in re-adapting to live in his native country, where he has few contacts who could assist him.  He does however, have a cousin in Da Nang.  When he spent two months there in 1997-1998 taking care of his sick grandmother (who died in 2003), he made contacts with the cousin and several other people.  He had no political or other problems while there other than a general shortage of money.  He had no trouble making contacts with local people except as a result of their need to work for long hours.  He has his forklift driver’s qualification, he speaks Vietnamese and some English and that would be of some assistance in finding employment.  His family could presumably provide some modest financial assistance to help him at the outset.  He is apparently in good health.  The conditions to be expected by criminal deportees to Vietnam were considered by Handley DP in Re Van Hiep Le and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 535. The tribunal in that case affirmed the deportation order in a case not unlike the present one, although somewhat stronger from the viewpoint of the applicant in that case, who had health problems and a child in Australia.

42.     I therefore conclude that the other considerations do not outweigh the first two primary ones.  The decision under review should be affirmed. 

I certify that the preceding 42 paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  26 August 2004
Date of Decision  3 September 2004
Solicitor for the Applicant          Self represented
Solicitor for the Respondent     Mr A Chand, Clayton Utz