Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 1003

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1003

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/879

GENERAL ADMINISTRATIVE DIVISION		)
Re		Dapino Sam

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date24 September 2004

PlaceSydney

Decision The tribunal affirms the decision under review.

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

Professor GD Walker
  Deputy President

CATCHWORDS

VISAEX – IMMIGRATION – on-shore visa application – transitional (permanent) visa – cancellation of visa for failing the character test on the basis of having a substantial criminal record – character test – past and present criminal conduct – discretion that the Tribunal may exercise where the applicant fails the character test – examination of the applicant’s criminal record – examination of the applicant’s immigration status – necessity to balance the expectations and protection of the Australian community against any hardship to the applicant – held the applicant was convicted of very serious offences and there is a risk that it is likely that he will re-offend – it is acknowledged that the applicant will face difficulties in returning to Cambodia however he is now a qualified bricklayer with some knowledge of English – the primary considerations outweigh the hardship which will be faced by the applicant – decision of the Respondent is affirmed.

Migration Act 1958 ss 499, 499(1), 501G, 501(2), 501(2)(a)(b), 501(6)(c)(i), 501(7)(c)

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

REASONS FOR DECISION

24 September 2004	Professor GD Walker, Deputy President
Summary

1.      The Applicant, Dapino Sam, who is aged 26 and a citizen of Cambodia, arrived in Australia on 8 November 1992 on a permanent resident (subclass 103) visa.  On 1 September 1994, Mr Sam’s visa was deemed to continue as a transitional (permanent) visa.

2. The Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, found that Mr Sam did not pass the character test pursuant to s 501(6)(a) of the Migration Act 1958 because he has a substantial criminal record in Australia, including aggravated robbery and drug related offences, for which he is currently imprisoned in the Cessnock Correctional Centre.  The respondent therefore cancelled Mr Sam’s transitional (permanent) visa.   This is the decision to be reviewed by the Tribunal.

Background

3.      Mr Sam was born in Cambodia on 8 May 1978 and is aged 26.  He is a citizen of Cambodia.  He arrived in Australia on 8 November 1992 on a permanent resident (subclass 103) visa issued on 14 September 1992.  At the time, his entry was sponsored by his grandmother, Aun Ma, grandfather, Sam Say, and brother, Dapina Sam, under the Family Unification Scheme. 

4.      Between 1994 and 2002, Mr Sam was convicted of the following offences for which he is presently imprisoned:

Court Date	Court	Offence	Sentence
5/12/1994	Bidura Childrens Court	Steal from person	Six months Probation; Pay $300 compensation
13/12/1994	Lidcombe Childrens Court	1.Goods in custody (two counts) 2.Supply prohibited drug (knowingly take part in) (heroin)	1. On each count NBC, warrant may issue 2. NBC conviction s80AA, warrant to issue for penalty
16/3/1995	Lidcombe Childrens Court	1.Supply prohibited drug (heroin) 2. Take part in supply of prohibited drug (heroin) 3. Fail to appear	1.50 hours Community Service Order 2. 50 hours CSO 3. 50 hours CSO
7/8/1995	Lidcombe Childrens Court	Goods in custody (FIW)	12 months probation, accept supervision of Juvenile Justice and reside with aunt and obey her directions
26/4/1996	Lidcombe Childrens Court	Supply prohibited drug (heroin)	Six months probation and 50 hours CSO
20/3/1997	Lidcombe Childrens Court	1.Supply prohibited drug 2.Possess prohibited drug 3. Breach of CSO	1. Control order without condition, four months commencing 20/3/1997 2. Control order without condition, four months commencing 20/3/1997 3. Control order without condition, four months commencing 20/3/1997
21/4/1997	Bankstown Local Court	Assault	Six months fixed term of imprisonment
9/9/1998	Fairfield Local Court	Possess prohibited drug	$300 fine, court costs $51
6/11/1998	Liverpool Local Court	1. Driver never held licence 2. Resist or hinder police officer in the execution of duty 3.Posses prohibited drug	1. $500 fine and court costs of $51 2. Fixed term of 14 days 3. Fixed term of three months
17/12/1998	Liverpool District Court	Take and driver conveyance without consent of owner	Appeal against conviction confirmed, in lieu minimum term of three months commencing 30/10/1998
9/11/2000	Fairfield Local Court	Supply prohibited drug	Convicted s25(2) warrant to issue
5/7/2000	Fairfield Local Court	Enter enclosed premises or land without lawful excuse	$300 fine and court costs $54
9/11/2000	Fairfield Local Court	Possess prohibited drug	Warrant to issue
15/11/2000	Fairfield Local Court	Enter prescribed premises without lawful excuse	$500 fine and court costs $56
30/1/2001	Fairfield Local Court	1.Possess prohibited drug 2.Supply prohibited drug	1. Fixed term of six months 2. Fixed term of 12 months
27/3/2002	Campbelltown District Court	Aggravated robbery	Four years imprisonment commencing 12/12/2001, non parole period two years

5.      On 1 September 1994, the Migration Reform (Transitional Provisions) Regulations 1994 (“the TRs”) were introduced.  Regulation 23 of the TRs provided that an application for a permanent resident (subclass 103) visa not determined by 1 September 1994 became an application for a transitional (permanent) visa and would be decided according to the criteria applied to a transitional (permanent) visa.  As Mr Sam’s application was not determined by 1 September 1994, it automatically became an application for a transitional (permanent) visa.

6.      On 15 July 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), New South Wales Character Section, advised Mr Sam that the Minister was personally considering refusing his visa application because of Mr Sam’s substantial criminal record and past and present criminal conduct, and inviting him to comment (G9).   In a statement dated 30 July 2003 Mr Sam responded, stating that he has no family in Cambodia, that he has been undergoing rehabilitation programs in prison, that the Australian community has nothing to fear from him and, that if he were given the opportunity to start again, he would be “a solid and hardworking member of the Australian society” (G10). 

7.      On 26 November 2003, an officer of DIMIA’s Compliance Cancellations Sections advised Mr Sam that a delegate of the Minister would be making the decision as to whether or not to cancel his visa and the matters that the decision-maker would be taking into account and allowing him a further opportunity to comment or provide further information (G11).

8. On 25 June 2004, a delegate of the respondent decided to refuse Mr Sam’s application because of his substantial criminal record and past and present criminal record and the significant risk that he would engage in future criminal conduct, and having exercised her discretion under s 501(2) of the Migration Act 1958 (“the Act”) to cancel his visa.   On 7 July 2004, Mr Sam acknowledged that he had received the decision record and information about his review rights (G1).  On 14 July 2004, Mr Sam lodged an application for a review of this decision by the tribunal.

9. At the hearing of this matter, the applicant appeared in person, and the respondent was represented by John Bird, solicitor, of Phillips Fox, 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 applicant at the hearing. Mr Sam gave oral evidence.

Relevant Law and Policy

10. 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) and 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”.

11. 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; …

12. 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. However, s 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.

13. 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, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

14.     In the present case, Mr Sam does not pass the character test because of his “substantial criminal record”, having received on 30 January 2001, a term of imprisonment of 12 months for the supply of a prohibited drug and on 27 March 2002, a term of four years imprisonment for aggravated robbery.  The issue remaining, therefore, is whether the tribunal should exercise the discretion under s 501(1) not to cancel Mr Sam’s visa.

Evidence

15.     Depino Sam gave oral evidence in person.  A Cambodian interpreter was sworn in to assist the witness, who has limited English skills.

16.     In his oral evidence and his written statement dated 13 August 2004 (Exhibit A2), the applicant said he was born in Cambodia in 1978 and had one older brother.  His parents were killed by the Pol Pot communist regime when he was one year old, and he was then taken care of by his grandparents.  He lived in Cambodia until the age of 12, and he and his grandparents found it difficult to find even basic food and shelter.  During that period he had two years of schooling.  He then moved to Vietnam and lived in a refugee camp for two years until the age of 14.  His uncle then sponsored his grandparents, his brother and himself to migrate to Australia under the reunification scheme.  He had difficulty at school in Australia because he could not speak English and left school at the age of 15.  After that he stayed with friends because he was frightened and ashamed to return home to his uncle’s house.  At that time he began “to get into trouble trying to find food, clothing and shelter”.  By the age of 16 he was using heroin and selling it to support himself. 

17.     Asked about his conviction for aggravated robbery and assault, he said he was at the time taking medication to quit heroin use.  He had been unable to obtain a place in a methadone course but was taking tablets called Catapres.  The prescribed dose was two tablets, but he took about seven and said it made him do stupid things.  To the suggestion that he was blaming drugs for his crimes, he replied that he was blaming himself too, he could not alter the past and now wanted to change himself.  The claim, about the influence of his medication, was not however, mentioned by Coleman J when sentencing the applicant for aggravated robbery on 27 March 2002 at Campbelltown District Court.  On the contrary, his Honour stated quite plainly that the offence was committed in order to support Mr Sam’s heroin habit:

He has never held a job and started committing criminal offences to support his daily needs as well as to support his heroin addiction.  He told the clinical psychologist, and I accept, the present offence was committed for that reason … After his release on parole in July 2001 he relapsed into heroin use and the offence which he committed I am satisfied was committed because of his addiction to that drug.  This was not a spontaneous offence. (pp4-6)

The applicant had claimed that he wanted to quit “the gear” (drugs) when he was released in 2001 but was unable to do so. Now he was “clean” of heroin and had been for three years. When Mr Bird pointed out to him that he failed a drug test in prison a year ago, he replied that after receiving the department’s letter of 15 July 2003 notifying him of the intention to consider visa cancellation under s 501(2) of the Migration Act, he had taken one or two marijuana cigarettes because he was “stressed out”.

18.     When it was pointed out to him that he must have known about the risk of deportation long before that, he simply replied that he wanted one more chance to change.

19.     Much of his case, in fact, was based on contentions that he genuinely wanted to change and would have nothing more to do with crime.  He was sick of being in and out of jail.  While in prison he had undertaken a bricklaying course and earned a bricklayer’s certificate.  He also started a forklift driver’s course but did not complete it.  He had, however, satisfactorily completed a number of other rehabilitation programs such as relapse prevention, English as a second language, harm minimisation, alternatives to violence, raising awareness for change and life management.  He had benefited from all of them and had also received good job reports.  He had to admit, however, that while at Oberon on the young adult offenders’ program he had incurred seven internal infringements for damaging or destroying property, giving false or misleading information, smoking in a non-smoking area (twice), failing to attend muster, assault and failing a urine test for cannabis.  The last mentioned offence occurred on 3 August 2003.  He failed a further urine test on 9 November 2003.

20.     He stressed that he no longer had any family in Cambodia, and as he had lived in Australia for 14 years (actually 12) he did not know how he would survive if he were sent back there.  On the other hand, he had little or no contact with his family in Australia, having lived with them for only one year because, he said, they were good people and he did not want to hurt them by getting them involved in his criminal activities.  Before he was returned to custody in 2001 he would see them fairly regularly when they went shopping.  Sometimes they would give him money, and sometimes they would ignore him. 

21.     No other witness gave oral evidence at the hearing. 

Application of the Law and Findings of Fact

22. As stated above, there is no dispute, and I find accordingly, that Mr Sam 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 Sam was convicted of the supply of a prohibited drug for which he was sentenced to 12 months imprisonment and aggravated robbery for which he was sentenced to four years imprisonment (G7). At the hearing he admitted these convictions.

23.     The issue for the tribunal then is whether to exercise its discretion under s 501(1) to decide, nevertheless, not to cancel Mr Sam’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, (f) assault or any other form of violence against persons, 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 hearing is the seriousness and nature of the conduct involved.   There is no dispute that on 30 January 2001, Mr Sam was convicted by the Fairfield Local Court of the supply of a prohibited drug and on 27 March 2002, was convicted by the Campbelltown District Court of aggravated assault.   In terms of the guidance provided by Direction No 21, there is no question that the offences of which Mr Sam was convicted should be considered very serious given the nature of the offences and the sentences of imprisonment imposed by the courts.  The tribunal notes that the offence of aggravated assault occurred when Mr Sam was on parole in relation to the supply of a prohibited drug.

28.     Next, the Tribunal must consider the risk of recidivism.  This applicant is a repeat offender who has been regularly before the courts since 1994.  He offends at short intervals after release and while on parole.  At present I think he genuinely regrets his transgressions but in large part because of his real trepidation about returning to Cambodia.  His lack of contact with his family, his poor English, and his continuing abuse of drugs (though not heroin) give little reason to believe that he would not return to his old haunts and habits.  In the pre-release report prepared on 26 September 2003 in anticipation of the expiry of his non-parole period, Mr John Taylor, psychologist, is quoted as saying that: “There would be a reasonably strong chance that he would simply leave prison and go back to the same environment which led him to committing criminal offences”.

29.     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.

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

31.     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            

32.     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”.  His long criminal record, and especially his conviction for aggravated robbery and assault, would certainly give rise to that expectation.  The community would also expect that the power of visa cancellation should not be exercised without a degree of compassion.  The applicant’s traumatic childhood in Cambodia and Vietnam, together with the hurdles he faced when placed in an Australian school with no knowledge of English, give him genuine claims in that regard.  Professor R J Rummel, a prominent and influential scholar in the field of peace and conflict studies, has pointed out that “In proportion to its population, Cambodia underwent a human catastrophe unparalleled in this [the 20^th] century” (R J Rummel, Statistics of Democide:  Genocide and Mass Murder since 1900, Lit Verlag, Muenster 1998, 48 and see generally Chapter 4).  It is nevertheless true that many thousands of people who came to Australia after the 1975 communist victories in Indo-China had suffered equally scarifying experiences without succumbing to drugs and crime.  The applicant will also face major difficulties if returned to Cambodia after 12 years in Australia, with no family remaining in Cambodia and little familiarity with Cambodian daily life today.  On the other hand, he has qualified as a bricklayer and has some knowledge of English, and those abilities should be of some help to him in finding employment if he is serious about leaving criminal ways behind him.  If he is able to restore some contact with his family in Australia, they may be able to give him some modest assistance to help him become established.

The Best Interests of the Child

33.     The third primary consideration, the best interests of the child, is not relevant to this matter.

Other Considerations

34.     Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.

35.     The applicant gave evidence that he has a brother and grandparents in Australia.  He has had no contact with his family in Australia since commencing his current four year sentence.  They have not visited him in prison and he saw them only on fleeting occasions before that.  Sometimes they ignored him.  They must already have suffered emotional hardship as a result of his criminal activities, and while that would be increased by the knowledge that he has been returned to Cambodia, they must have been long aware of the likelihood of that happening.  As regards rehabilitation, the applicant has completed some useful courses while serving his current sentences, but apart from that, his claim of displaying faultless behaviour while in jail is belied by his accumulation of at least eight offences while in custody.  Such evidence of rehabilitation as he has given relates only to his time in prison and it is far from clear it would be replicated or augmented if he were to be released into the Australian community.  He had never had a job and as Mr Bird noted, the only support his family has given him in recent years consists of small sums of money, a kind of support that inherently creates a risk of relapse.  As he admits, he has been refused parole on three occasions. 

36.     I find that the other considerations do not outweigh the two primary considerations mentioned above.  The decision should be affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

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

Date/s of Hearing  9 and 10 September 2004
Date of Decision  24 September 2004
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr J Bird, Phillips Fox, solicitors