Saenchai and Minister for Immigration and Multicultural Affairs
[2007] AATA 1052
•15 January 2007
Administrative Appeals Tribunal
[2007] AATA 1052
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2006/1061
GENERAL ADMINISTRATIVE DIVISION
Re: CHAIYA SAENCHAI
Applicant
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member Date:15 January 2007
Place:Melbourne
Decision: For reasons given orally at the hearing, the Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the Five Year Resident Return visa held by Mr Saenchai not be cancelled on character grounds. (sgd) G. D. Friedman
Senior Member
MIGRATION - Five Year Resident Return permanent visa ‑ cancellation - criminal record - character test - exercise of discretion
Migration Act 1958 s 499(1), 499(2A), 501(2), 501(6), 501(7), 501G
Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142
Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585
REASONS FOR DECISION
15 January 2007 G.D. Friedman, Senior Member
1. On 3 November 2006 a delegate of the Minister for Immigration and Multicultural Affairs cancelled the Five Year Resident Return visa held by Chaiya Saenchai on character grounds because of Mr Saenchai’s criminal record. Mr Saenchai seeks review of that decision.
ISSUE
2. The issue is whether the Tribunal should exercise its discretion to cancel Mr Saenchai’s visa.
BACKGROUND
3. Mr Saenchai was born on 1 March 1971 in Thailand. He first arrived in Australia on 23 December 1991 on a tourist visa and departed on 18 January 1992. He returned to Australia on 20 February 1994 as the holder of a spouse visa, which ceased to have effect upon the granting of a Class BB (Subclass 155) Five Year Resident Return permanent visa on 4 November 2002.
4. Between September 1997 and November 2004, Mr Saenchai was convicted of a number of offences including drug matters, possession of weapons and possession of stolen goods. On 17 September 1997 in the Magistrates’ Court of Victoria he was placed on a community based order and received a suspended gaol sentence for offences including possession of an unregistered handgun. On 6 September 2000 in the Magistrates’ Court he received a suspended sentence for trafficking heroin. On 8 November 2004 in the County Court of Victoria he was convicted of trafficking heroin and was sentenced to three years’ imprisonment with a two-year non-parole period. On 11 August 2005 the Court of Appeal dismissed his appeal against the sentence. Mr Saenchai was released on parole on 6 December 2006 and was taken to the Immigration Detention Centre in Maribyrnong following the cancellation of his visa.
EVIDENCE
5. In a written statement dated 10 January 2007 (Exhibit A1) Mr Saenchai stated that his mother left when he was young, and his father lived with another woman. He said that he was raised by his two brothers, although his father provided for his financial needs but gave no emotional support. Mr Saenchai explained that after secondary school he studied for a brief time at Chiang Mai University, after which he was accepted into the Military Academy of the Royal Thai Air Force, where he commenced a five-year course to become an Air Force pilot.
6. Mr Saenchai said that he met Ms Eva Tatray, an Australian school teacher, in 1990 when she was visiting Chiang Mai. A relationship began and he visited Australia in 1991 to meet her family. They were married in Thailand on 9 March 1992 and lived together in Chang Mai until Ms Tatray became ill and they decided to move to Australia in 1994, and he was granted a permanent spouse visa. He said that he resigned from the Air Force and attempted several tertiary courses before discontinuing his studies in order to work as a cabinet-maker and machine operator.
7. Mr Saenchai told the Tribunal that in about 1996 he became depressed after the death of both of his brothers in Thailand, and he was lonely. A friend introduced him to heroin, which he smoked, and he became involved with other users. He said that the friend lent him a plastic toy gun which they used for playing games, as it fired plastic pellets. He stated that police found the gun, together with a small quantity of heroin, and this led to his conviction on drug and firearm charges in 1997. He said that he completed his community based order and did not breach the suspended sentence. Mr Saenchai stated that in 1999 and 2000 he was fined for possession of drugs, and in July 2000 he pleaded guilty to possession of six pairs of socks which were in a room where he was visiting a friend.
8. In relation to more serious drug offences, Mr Saenchai said that in 1999 his marriage became strained because of his drug use, and he met Ms Kylie Thomson, a drug user who was living on the streets. Mr Saenchai stated that in 2000 he was convicted of trafficking heroin after he, Ms Thomson and several friends were apprehended with 20 grams of heroin after they attended a flat in Doncaster with the intention of purchasing the drug for their own use.
9. Mr Saenchai stated that he was involved in a motor vehicle accident in 2001 and has suffered from migraines, dizziness and blackouts since then. Ms Thomson became pregnant in 2001 and during this time commenced living with Mr Saenchai and his wife. She gave birth to their son (Valenteen Saenchai) on 11 May 2002. He stated that he and Ms Thomson did their best as parents and were assisted by Ms Tatray, but in October 2002 Ms Thomson’s parents removed the child and the maternal grandmother was granted guardianship. Mr Saenchai said that his drug use escalated, and he was arrested on 17 December 2002 while attempting to buy heroin for his and Ms Thomson’s use, and his gaol sentence followed his plea of guilty of trafficking in heroin. He explained that while on bail he sought assistance from Mr Joe Lamberti, his drug counsellor, and he ceased using drugs. Mr Saenchai said that he has not taken drugs in the three years since then.
10. In relation to his gaol sentence, Mr Saenchai conceded that he did not learn his lesson after receiving a second suspended sentence, but now realises the harm that drugs can cause. He produced certificates (Exhibit A8) showing that he completed courses in life skills, cognitive skills, anger management, drug treatment, horticulture and food handling while in custody. He said that he is determined not to get into any trouble in the future, and has the support of Ms Tatray, with whom he has resumed his marriage and who has never used illicit drugs. Mr Saenchai also stated that he has ended his relationship with Ms Thomson and with former friends who were drug users. He noted that he is still on parole, and that any re-offending would result in him being returned to gaol. He referred in particular to the drug treatment program he completed while in custody and the assistance from Mr Lamberti, and said that he is now equipped to deal with stress and depression without resorting to drug use.
11. Mr Saenchai told the Tribunal that he did not see the child during his incarceration because he preferred that the child not know that he was in gaol, although he tried to maintain contact by sending cards, and through visits by Ms Thomson. He said that he is determined to re-build his relationship with his son and to ensure the child receives his full support and assistance, unlike his own situation where his father provided only material support and was not involved in his upbringing. He emphasised that if he was forced to return to Thailand he would face enormous difficulties, as he has not had any communication with his father since 1996 and has no other immediate family. He pointed out that living in Thailand is not conducive to Ms Tatray’s health, and she would suffer hardship if she re-located to Thailand. He added that he would be unable to develop any meaningful relationship with Valenteen, and travel to Thailand by a young child too would be impractical.
12. In a written statement dated 10 January 2007 (Exhibit A2) Ms Tatray confirmed the circumstances of meeting and marrying Mr Saenchai as described by him and said that said that he had received a relatively small amount of money from his father after they moved to Australia in 1994. She said that she has been supporting Mr Saenchai financially when he has not been working. Ms Tatray stated that Mr Saenchai had begun using heroin as a means of coping with loneliness and depression, and was able to deal with his addiction only after his release on bail with the assistance of Mr Lamberti and his general practitioner.
13. Ms Tatray told the Tribunal that the marriage was strained by Mr Saenchai’s drug use, and that she agreed reluctantly to allow Ms Thomson and the child to live with them. She explained that she has continued to love and support Mr Saenchai and that they have re-united after Ms Thomson ceased visiting him in March 2005. She also said that Mr Saenchai’s attitude has improved greatly over the past few years and he now recognises the harm and hurt that drug use can cause to himself and those around him. She said that they had been looking forward to resuming their life together until his visa was cancelled and he was taken into immigration detention.
14. Ms Tatray stated that she would be devastated if Mr Saenchai is forced to return to Thailand. She referred to her health concerns, responsibilities to her aged mother and her career in Australia that would make a move to Thailand extremely difficult, which would leave Mr Saenchai without any meaningful family support. She stated that she is certain that he will not take illicit drugs if permitted to remain in Australia. She said that he has acknowledged the seriousness of his offences and is now a more mature and responsible person who is able to cope with stress and difficult situations without resorting to drug use. She noted that he is on parole until November 2007, which is a significant incentive to stay out of trouble.
15. Ms Tatray described her husband as a good and generous person, a devout Buddhist and someone who is determined not to make her suffer again through his actions. She said she will continue to love and support him and to help him build a relationship with Valenteen.
16. In a written statement dated 23 January 2006 (Exhibit A4) Ms J. Plucinski, Ms Tatray’s sister, said that Mr Saenchai is courteous, well mannered and softly spoken. She described strong cultural and language differences and a number of disappointments in his search for employment, which she said had an effect on his initial enthusiasm. She described his efforts to help anyone less fortunate than himself, and said that in many cases he was manipulated by others. She said that his family history suggests a person who needs older mentors. Ms Plucinski said that since his incarceration Mr Saenchai has learnt to deal with his feelings and to accept responsibility as a husband and father. In a written statement dated 14 January 2007 (Exhibit A4) Ms Plucinski said that her views had remained unchanged, and in oral evidence she stated that she would be prepared to provide employment to Mr Saenchai in her gardening business.
17. In an undated and unsigned statement prepared in January 2007 (Exhibit A5) Ms Thomson said that her parents have separated and she lives with her father. She said that she visits her mother and Valenteen every day, and the child spends weekends with her and her father. Ms Thomson stated that she is undertaking a methadone program and has ceased using heroin. She said that apart from recent telephone contact she has not had contact with Mr Saenchai for two years, and has no plans to resume their relationship. She described him as …a really good person, very “down to earth” and supportive of others. She stated that she considered him to have been a good father who provided food and clothing and spent considerable time with the child before the child was removed. Ms Thomson said she believes the child’s best interests are served by the involvement of Mr Saenchai in his upbringing, and she would welcome contact between him and Valenteen in the future. She doubted that this involvement would be possible in any meaningful way if Mr Saenchai was forced to return to Thailand.
18. In a written statement dated 10 January 2007 (Exhibit A6) Dr T. Blaze said that in 1998 Ms Tatray introduced him to Mr Saenchai, whom he found to be …a clean-cut, friendly, amiable person whose company I thoroughly enjoyed. Dr Blaze also referred to Mr Saenchai’s ..friendship, loyalty, trustworthiness and impeccable character. He said that he had no contact between 2001 and 2006, and accompanied Ms Tatray on a visit to Mr Saenchai in immigration detention on 8 January 2007. Dr Blaze was impressed with Mr Saenchai’s appearance, demeanour and sincerity, and said that he was confident that with Ms Tatray’s support Mr Saenchai will make an honest and forthright Australian citizen.
19. In a written psychological assessment dated 27 December 2006 (Exhibit A3) Mr I. Joblin, forensic psychologist, stated that Mr Saenchai’s drug use was connected to depression arising from the death of his brothers and the removal of his child. Mr Joblin found no clinical abnormality or personality disorder, although he had some concerns about the psychological functioning and the impact of the motor vehicle accident. He said that the heroin use occurred in a context and that Mr Saenchai has been somewhat successful in addressing the issues. He concluded that Mr Saenchai has a considerable future if he remains in Australia, but that a return to Thailand could affect his contact with the child, and his wife might be unable to accompany him, leaving him without family support. In oral evidence Mr Joblin referred to Mr Saenchai’s fragile state and the need for ongoing support.
20. In a written statement dated 30 January 2006 (G9) Mr J. Lamberti, rehabilitation consultant, said that Mr Saenchai commenced treatment for heroin addiction on 9 January 2003, as a condition of the granting of bail. He said that Mr Saenchai has had an ongoing addiction to heroin and other drugs for a considerable time, and the addiction has continued on and off due to depression and relapse caused by emotional trauma, including residence and contact issues in relation to Valenteen. Mr Lamberti noted that Mr Saenchai was reacting to life circumstances and was prone to depression, seeking opiates as a means of self-medication. He said that Mr Saenchai had undertaken drug counselling and a relapse prevention program, which had been helpful in assisting him to deal with his problems. Mr Lamberti stated that during his incarceration Mr Saenchai had remained drug-free and had maintained a healthy lifestyle, with no signs of his previous depression. He said that in his opinion Mr Saenchai was capable of responding positively and maintaining significant periods of being drug-free and crime-free. He said there is no indication that a relapse is likely.
21. In a letter dated 20 January 2006 to the Department of Immigration and Multicultural Affairs (G8) Mr P. Guggenheimer, barrister-at-law, said that he represented Mr Saenchai throughout the criminal proceedings, and police telephone intercepts had shown that Mr Saenchai was a self-funded heroin user and was not involved in the purchase of heroin for commercial gain. He said that, given the circumstances of the trafficking, involving a one ounce deal of heroin, it was his view that the sentence imposed by the judge in the County Court was manifestly excessive, particularly in light of the sentences that were imposed on the co-offenders.
22. In a written statement dated 24 January 2006 (G12) Mr J. Victor stated that he met Mr Saenchai about five years earlier, and Mr Saenchai had completed some work experience in his motor body works business. Mr Victor said that he found Mr Saenchai to be a person with a strict set of morals and honesty in his manner. He said he believes that Mr Saenchai has an ability to turn his life around and become a valuable member of society. He said he would not hesitate to recommend Mr Saenchai to any prospective employer, and said that he was sure that Mr Saenchai would prove to be a responsible and valued member of the community.
CONSIDERATION OF THE ISSUES
23. 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 he or she 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)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
24. 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.
25. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction N° 21, Visa Refusal and Cancellation under s 501 (Direction 21), which provides guidance to decision‑makers 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.
26. Paragraph 2.2 of Direction 21 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 of Direction 21 sets out the primary considerations:
2.3 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 of Direction 21 explains:
2.4 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…
27. Examples of the matters that the Government views as serious offences are set out in paragraph 2.6 of Direction 21. These include 2.6(a) drug‑related crime. Paragraph 2.8 of Direction 21 states that when exercising discretion, decision‑makers must take into account any relevant factors provided by the non‑citizen as mitigating factors. Paragraphs 2.10 and 2.11 of Direction 21 refer the decision‑maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – that is, the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
28. Paragraph 2.17 of Direction 21 states that, when considering the issue of visa refusal or cancellation, other considerations may be relevant, although they will generally be given less individual weight than that given to the primary considerations. 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.
29. There was no dispute, and the Tribunal finds, that Mr Saenchai does not pass the character test in s 501(6)(a) of the Act.
30. In considering whether to exercise its discretion under s 501(2) to cancel his visa the Tribunal has had regard to Direction 21.
31. In respect of the first primary consideration, concerning protection of the Australian community, the Tribunal notes that Mr Saenchai has a criminal history during the period 1997 to 2004, including the serious charges of trafficking heroin, and other charges relating to drugs, firearms and possession of stolen goods. Two of the charges constitute very serious offences as they involve drug-related matters (paragraph 2.6 of the Direction), and are serious conduct against the community. On the question of the risk of recidivism, the Tribunal notes that Mr Saenchai was before the courts on number of occasions during the period, and was previously in receipt of two suspended custodial sentences, which he did not breach. However, the Tribunal takes into account the evidence that he has remained drug‑free for three years and has completed various courses in gaol. He appears to have demonstrated a clearer insight into the effects of drug use on himself and those around him. The offences involving the toy gun and the drugs charges, although serious, would appear to be at the lower end of the scale.
32. The Tribunal was impressed with the frank manner in which Mr Saenchai gave evidence. Given his three years without taking drugs, the support of his wife, family and friends, the professional support available to him and the parole period that extends until November 2007, the Tribunal considers that the risk of re-offending is low. In relation to general deterrence the Tribunal takes in to account the comments made in Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142 and Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585 and concludes that general deterrence is not a major factor in the circumstances of this application.
33. In respect of the second primary consideration, concerning expectations of the Australian community, the Tribunal notes that the Australian community expects that non‑citizens will obey Australian laws while in Australia. The Tribunal takes into account the seriousness and frequency of the offences committed by Mr Saenchai during the relevant period. However, many Australians who were fully aware of his circumstances and of his offending would expect a humane and compassionate approach to be taken, especially in view of his three years without taking drugs and his demonstrated efforts to rehabilitate himself.
34. In this regard the Tribunal takes into account Mr Saenchai’s depression arising from the death of his brothers and his loneliness in Australia. No doubt the absence of his mother from an early age and sporadic contact with his father while growing up in Thailand played a role in the difficulties he experienced after leaving his home in Chiang Mai at the age of 22 years to live in Australia, and giving up his prestigious position as a trainee jet pilot at the Air Force Academy. His efforts to rehabilitate himself during his term of imprisonment, the support from his wife and her family, and the stated desire, apparently supported by Ms Thomson, to build a meaningful relationship with his child are significant factors that may contribute to satisfying the Australian community that he would, if given the opportunity to remain in Australia, become a responsible member of the wider community. This is supported by the references from Mr Lamberti, Dr Blaze, Mr Victor and Ms Plucinski, and the assessment by Mr Joblin.
35. In respect of the third primary consideration, concerning the best interests of a child, the Tribunal accepts Mr Saenchai’s evidence, apparently supported by Ms Thomson, that he did his best to be a caring father before the child was removed at the age of five months, and that he has shown a genuine desire to play an active role as a father in the future, despite the lack of direct contact during his term of imprisonment, for reasons that seem plausible.
36. The Tribunal concludes that Valenteen’s best interests are best served by regular contact with both parents. The Tribunal has no reason to doubt that Ms Thomson would facilitate contact between Mr Saenchai and the child. Given the child’s age and the financial resources available to his parents and grandparents, there is no realistic prospect that Mr Saenchai would be able to maintain satisfactory direct contact with Valenteen if he was forced to return to Thailand, and meaningful telephone or electronic contact with a young child would be difficult. The Tribunal concludes that cancellation of the visa would effectively prevent Mr Saenchai from playing a significant role in the child’s life.
37. In respect of the other relevant considerations, the Tribunal has been impressed by evidence of efforts Mr Saenchai has made to rehabilitate himself by completing various courses and remaining drug-free for a considerable period. Persons writing references have commented favourably on his demeanour, his willingness to help others and his kindness. Mr Saenchai and Ms Tatray have re-united and he depends on her for emotional and financial support. She has been a positive influence and a stable partner, despite the strains on the marriage arising from his drug use. The Tribunal places considerable weight on her evidence.
38. This family relationship would be disrupted if Mr Saenchai was required to live in Thailand because in all probability Ms Tatray’s health and her commitments in Australia would prevent her from leaving Australia on a permanent basis, which would deprive Mr Saenchai of his strongest support, especially as he has lost contact with his father and has no other immediate family or recent connection with Thailand. Ms Tatray would suffer considerably if she chose to re-locate to Thailand. Mr Saenchai has been away from Thailand for more than 12 years, and his employment prospects in that country are problematic, as he did not complete tertiary study, and the effects of the motor vehicle accident in 2001 may have an impact. He may suffer financial hardship without Ms Tatray’s presence.
39. In weighing up all the circumstances of the primary considerations and then the secondary considerations, the Tribunal concludes, for the reasons given, that it should exercise the discretion not to cancel Mr Saenchai’s visa on character grounds.
DECISION
40. For reasons given orally at the hearing, the Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the Five Year Resident Return visa held by Mr Saenchai not be cancelled on character grounds.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Date of hearing: 15 January 2007
Date of decision: 15 January 2007
Counsel for applicant: Mr G. Hughan
Solicitor for applicant:: Victoria Legal Aid
Advocate for respondent: Ms C. Petrie
Solicitor for respondent: Clayton Utz
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