Say and Minister for Immigration and Multicultural Affairs
[2006] AATA 454
•25 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 454
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/223
GENERAL ADMINISTRATIVE DIVISION ) Re PHEAP SAY Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date25 May 2006
PlaceMelbourne
Decision The decision of the Respondent of 7 November 2005 is set aside and in substitution IT IS DECIDED that the visa held by Mr Say not be cancelled. ..............................................
Senior Member
MIGRATION – application to cancel visa – applicant entered Australia at age 7 – previous two years in a migration detention camp in Thailand – applicant and his family escaped Cambodia and the Pol Pot regime – applicant has lived in Australia for 20 years – multiple offences associated with heroin addiction – numerous terms of imprisonment – Direction 21 examined and considered – applicant has been drug free and not sentenced since 2004 – all current family members residing in and citizens of Australia – no relatives in or connection with Cambodia – whether decision under s 501 to cancel visa is appropriate – decision set aside
Migration Act 1958 s 501 and s 501(2) and s 499
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420; [2005] FCAFC 121
Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585
Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142
Re Johnson and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 304
Taylor v Minister for Immigration and Multicultural Affairs [2004] FCA 1081
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7
R v McKee Brooks [2003] VSCA 16
REASONS FOR DECISION
25 May 2006 Mr John Handley, Senior Member 1. On 21 March 2006, Mr Say was notified of a decision made on 7 November 2005 by a delegate of the Minister to cancel a visa which had been issued to him. Mr Say has applied to review that decision.
introduction
2. Mr Say is presently 28 years of age having been born on 1 September 1977 in Cambodia. At the age of two years Mr Say, together with his parents, entered a refugee camp in Thailand to avoid civil unrest then existing in Cambodia associated with the former Pol Pot Regime. His parents later returned with him to Cambodia but again left for Thailand in about 1983 where they remained in a refugee camp for approximately two years. In February 1985, the Australian Embassy in Bangkok issued Mr Say, his brothers and sisters and his parents with a Class K 4032 visa under the Refugee and Special Humanitarian Program. The visa issued to Mr Say permitted him to remain in Australia indefinitely.
3. Mr Say was issued with a notice of intention to consider cancellation of his visa on 11 June 2002 and on 28 July 2004. The Minister did not act on those notices. The notice which gave rise to the decision made by the Minister’s delegate in November 2005 is dated 18 April 2005. It would appear from the documents lodged by the respondent that Mr Say did not respond to any of the three notices which have been issued. Almost nothing was known of the applicant’s circumstances other than the police criminal history which was in the possession of the Minister’s delegate. Most of the information recorded below has been obtained from extensive documentation prepared by Mr Hughan of Counsel who appeared pro bono on behalf of Mr Say.
4. An examination of the Victorian Police Records obtained by the respondent disclosed a long history of criminal offences and convictions. Mr Say unfortunately has multiple convictions for drug offences comprising possession of amphetamines and use, possess and cultivate cannabis but more significantly multiple offences for use, possession and trafficking heroin. He has many convictions for offences of dishonesty comprising burglary, theft, tamper, going equipped to steal, unlawfully on premises and handling stolen goods. He has also been convicted of assault, threat to kill and possessing a weapon. Many of the offences have resulted in lengthy periods of imprisonment.
5. On 23 September 2003, Mr Say was convicted at the Dandenong Magistrates’ Court for a number of offences which resulted in an aggregate period of imprisonment of 12 months. The duration of that period of imprisonment amounts to a “substantial criminal record” within the meaning of s 501(7) of the Migration Act 1958 (“the Act”). Mr Say therefore does not pass the “character test” under s 501(2) of the Act. That subsection however permits the exercise of a discretion as to whether a visa should be cancelled but the discretion must be exercised by regard to s 499 of the Act which refers to written Directions issued by the Minister concerning the performance and exercise of functions and powers under the Act. Relevantly the Direction issued is Direction No 21 (“Direction 21”). Section 499(2A) of the Act compels compliance with that Direction. Failure to comply is an error of law (refer Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238 and Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420; [2005] FCAFC 121).
6. The Minister’s delegate in his written reasons for decision decided that Mr Say did not pass the “character test”. In making that decision, the delegate recorded in his written reasons that he had regard for Direction 21.
the evidence
7. Prior to the hearing which was convened on 19 May 2006, Mr Hughan lodged a number of statements completed by Mr Say, his mother, his brothers and sisters, a partner of one of his sisters and a former employer. A “Confidential Progress Report” completed at the initiation of the Dandenong Magistrates’ Court was lodged together with extracts from a report published by the Commonwealth Ombudsman in February 2006 following an investigation initiated by the Ombudsman concerning the “Administration of s 501 of The Migration Act 1958 As It Applies To Long-Term Residents”. All of those documents will be referred to in these Reasons.
8. Mr Say, the applicant in these proceedings, gave evidence and adopted his statement completed by him on 16 May 2006. That statement is reproduced as follows:
STATEMENT
I, PHEAP SAY, fruit picker, of 13 Finisterre Drive, Keysborough, STATE AS FOLLOWS:
1.I am the applicant in this proceeding before the Tribunal. Although I have a substantial criminal record and therefore do not pass the character test, I believe the decision made by an officer of the Department of Immigration and Multicultural Affairs to cancel my permanent residence visa is incorrect.
2.I was born on 1 September 1977 in Kampuchea (as Cambodia was then named). I am not sure of the precise place of my birth. At the time I was born my parents were held in a detention camp run by the Pol Pot government.
3.I am the eldest of four children born to my parents. My father’s name is Heng Say. He is now aged about 50 and is an Australian citizen. I have lost contact with him and I do not know where he lives now. My parents separated approximately 14 years ago. Before then he was living with our family in Springvale. My parents ran a textiles business.
4.My mother’s name is Loung Chhour. She is also an Australian citizen and is currently receiving a pension. She lives at 1 Doris Court, Springvale.
5.Mom Say (who we all call Sreiy) is the eldest of my younger siblings. She was born on 20 March 1980 and is now aged 26. She works as a hairdresser at ‘Just Cut’ in the Highpoint shopping centre at Maribyrnong. She lives with her boyfriend in Moonee Ponds.
6.Next is Sophee Say, aged 24, who was born on 10 October 1981. She is employed as an architectural draftsperson in South Yarra. She lives at 13 Finisterre Drive, Keysborough. Sreiy and Sophee were born in Cambodia but they are now Australian citizens.
7.My only brother, David Say, is 19. He is an apprentice spray painter and lives with Sophee. He was born in Australia.
8.I also have a younger half-sister, Cindy Chhour, born to my mother. Cindy is now 7 years old and lives with my mother at Doris Court, Springvale. She attends school.
9.My family left Kampuchea when I was about 5 years old and fled to Thailand. We lived in a refugee camp in Thailand until 1985 when we were accepted into Australia. I have no memory of being in Kampuchea and Thailand; I am only going by what I was told. My first memory is of attending school here in Victoria.
10.I have never left Australia since my arrival here and have always considered myself to be Australian. I do not speak Khmer very well. My mother speaks Khmer and broken English and I communicate with her as best I can, in a combination of broken English and some Khmer words that I know. I don’t speak the language very well but can understand a bit.
11.Apart from my immediate family there are also cousins, uncles and aunts on my mother’s side living here in Australia who are Australian citizens. I see these relatives at family celebrations a couple of times each year. As far as I am aware, I do not have any relatives in Cambodia. I certainly do not know any relatives that live in Cambodia.
12.After coming to Australia I started school. I first did Grade 2 at Clayton Primary School. I began doing Grade 3 at Springvale West Primary School, but then transferred to Spring Valley Primary School in Springvale South. I finished my primary schooling then did Years 7 and 8 at Westall High School. I then completed year 9 and began year 10 at Huntingdale Technical School.
13.I do not remember having any problems at primary school, although I was not a top notch student. I was pretty good at art and sport. Things were different at secondary school. Westall High was a very rough school. I used to associate with a lot of kids from all different backgrounds, including Australians, Cambodians and Vietnamese. I began to smoke marijuana and drink alcohol with my friends from very soon after the time I started at high school. This was around the time I was 13. About one year later, some of my friends were using heroin and offered it to me. I tried it to be “cool”. I was too young to realise the effect that it would have on me and my life. I did not understand that I would become addicted to heroin.
14.The first time I appeared in Court was at the Children’s Court in October 1994. When I was about 16 I purchased a shotgun. I don’t really know why I got it, I think I was just stupid. I was with a friend and was trying to work out how to use the shotgun. He was sitting on the other side of a wall and I was trying to un-jam the firing mechanism. As I was doing so, the gun discharged. The gun was pointed towards the ground but the shot ricocheted off it, up through the wall and struck my friend to the leg and the side of his chest. I did not intend to hurt him or anybody else in doing this. As can be seen from the record, I was placed on a good behaviour bond and fined without conviction on these charges.
15.It is my belief that, as these charges occurred more than 10 years ago, it is not lawful for the Tribunal to use evidence of these events against me, pursuant to section 274 of the Children and Young Persons Act.
16.As can be seen from my criminal history, much of my offending after this time related to my heroin addiction. On occasions I have sold heroin to other people in order to get a small amount of heroin for myself. I have also committed burglaries, thefts and other offences of dishonesty to try and fund my previous heroin addiction. I understand the seriousness of my offending and I am very sorry for what I have done.
17.The last time that I was in gaol was around May 2004, when I was released on parole for nine months. This was following an appearance at Court on 23 September 2003. On that date I was sentenced to an aggregate period of 12 months imprisonment with a non-parole period of three months and ordered to serve an additional 170 days for having failed to comply with an intensive corrections order that had been given to me earlier that year.
18.Since being released on parole I have tried very hard to not use drugs and commit crime. For the first three months of my parole period I was on “intensive parole” and then on normal parole for the remaining six months. I was able to successfully complete both parts of my parole order. While on parole I was regularly required to give urine samples for testing and these tests were negative for drug use.
19.Unfortunately, after the end of the parole order, I have relapsed into drug use on occasions. However thanks to the assistance of Nhat Nguyen, who runs the CREDIT Bail Program at the Dandenong Magistrates’ Court, I have now managed to stay out of trouble for almost one year.
20.Although I pleaded guilty at the Dandenong Magistrates’ Court on 20 January 2005 to a charge of attempted theft of a motor vehicle, you can see from the attached document that offence occurred in February 2003, many months prior to me going into gaol in September 2003. This charge was not dealt with until 2005 because the police said they were not able to find me, but for almost nine months I was in gaol and was then on parole for nine months. Having to go back to Court in early 2005 was a very frightening experience for me, because I had resolved on finishing my gaol sentence the previous year to stay out of trouble.
21.In April and June 2005 I committed further offences. However, the Magistrates’ Court at Dandenong gave me a chance to stay out of gaol providing I went on the CREDIT Bail Program that I have previously mentioned. I found this program to be very helpful and got a lot of support from Nhat Nguyen and from a counsellor, that he referred me to, by the name of John Burt.
22.On 9 February 2006 the Dandenong Court placed me on another intensive corrections order because I had successfully completed the CREDIT Bail Program. However I was advised by my lawyers to appeal because they consider that the length of the order (12 months) to be too long. I have lodged an appeal against that sentencing order. The appeal is scheduled to be heard in the County Court at Melbourne on 28 July 2006.
23.Before I was arrested by police on behalf of the Department of Immigration, I was living with my sister Sophee and my brother David in Keysborough. I was working as a fruit picker almost every day. In fact the boss was so impressed by my work that he promoted me to manager of a group of workers, where I had direct responsibility for up to 20 fruit pickers at any one time.
24.I really believe that I have turned my life around completely. I was devastated when the police arrested me because of a warrant from the Department of Immigration. I was arrested at my home and did not resist, although I was very confused about why the police were there. Until we got to the police station all they would tell me was that there was a warrant for my arrest, the police themselves did not seem to know what it was about. I waited all day at the police station and was then transferred into immigration detention.
25.Since arriving at Maribyrnong I have had regular contact with my family. My mother and siblings visit me regularly.
26.Also before I was taken into immigration detention I was regularly visiting my mother at her home. I would help her around the house, for example by cutting the grass and cleaning up, and sometimes would give her money to help with expenses. At times I would take Cindy to and from school. We would watch television, ride our bikes and go shopping or to McDonalds together. I have a very good relationship with Cindy.
27.I would also visit the Cambodian Buddhist Temple in Springvale each few weeks to burn incense and pray quietly by myself. This helped me to reflect over my life. I have lost a lot of friends over the years, many from overdosing on drugs, others from having died in car crashes. Praying at the temple gave me a sense of hope and of optimism to keep going.
28.I consider myself more Aussie than Cambodian. I think of myself as an Aussie kid who stuffed up and I am now trying to do the right thing. I have been in Australia for more than 20 years and have no knowledge of the place I was born. I think it is very unfair for the Australian Government to want to send me back to Cambodia. I do not understand why it has taken more than two years for them to cancel my visa, especially now that I feel that I have got my life together.
29.Although I did receive one of the notices to consider cancellation, I do not recall receiving the other two. My parole officer handed me the notice but she did not give me any advice about it or what I should do.
30.Having received notice of the cancellation of my visa and being placed in detention has been a real shock to me. I can assure the Tribunal that I am determined that I will not re‑offend in the future. I can see that I cannot afford to get into any more trouble.
9. Mr Say gave evidence. He did not resile from the serious nature of his previous behaviour and gave his evidence in a manner which was contrite. He said that all of his crime was associated with his addiction to heroin from which he did not make profit other than to either acquire money for the purposes of purchase of other drugs for self-administration or to receive “payment” in drugs.
10. Between 1994 and 2004, he has spent a great deal of his time in gaol. He agreed with Mr Wee that he has 118 convictions, has been in Court on 20 occasions and has served 12 terms of imprisonment. However, he has not been in prison since 2004 and but for one relapse of heroin use in 2005, he has been drug free for two years. He did live with his mother in Springvale for a short time after he was released from prison in 2004 but moved away to live with his sister in Keysborough to avoid the risk of offending in the Springvale district. As Detective Bobetic was to say later in evidence, Springvale does have a high crime incidence and it would be preferable for Mr Say to not frequent the Springvale district.
11. It would appear from the evidence of Mr Say, as was also corroborated by his mother and by his sister Sophee, that he has made considerable lifestyle changes. He has held employment as a fruit picker and has been given management and supervisory responsibility (refer Statement tendered by Meng Chea his employer). He does visit his mother on three or four occasions per week and helps her around the home and gives her money. His relationship with his mother and his brother and sisters has improved and they are supportive of him. Mr Say has a close and loving relationship with his step sister Cindy who is presently seven years of age. It was evident from observing both Mr Say and Cindy interact at the hearing that they both have a close relationship.
12. Mr Say has undertaken a buprenorphine program which has allowed him to remain drug free. Mr Say said that he had attempted previous drug and alcohol programs but had never been successful because upon release from prison he always reverted to drug use. Since 2004 he has made a commitment to himself and his family to remain drug free and to not commit crime. When asked by Mr Hughan whether he could give any commitment about his future behaviour, he said that he would assure those around him that he would not re-offend and he would not return to prison. He made the point, not having been imprisoned for the last two years, that his lifestyle had obviously changed because he had not ever enjoyed a period of that duration out of prison since 1994 whereas previously he had been in and out of prison every three or four months.
13. Mr Say said that he knew nothing of Cambodia, he has no relatives, family or friends who live there and his command of the Khymer language is poor. He said that his mother, brother and sisters are all residents of Australia and are Australian citizens. He asked for the opportunity to remain in Australia where it was his intention to continue to work and commence self-employment in a family business. He acknowledged that he now understood that he had no unlimited right to remain in Australia and would have to honour and obey Australian laws if he was permitted to remain here. As a measure of his intention to continue to be drug free and to reform, he pointed to the placement on an intensive correction order by the Magistrates’ Court at Dandenong in 2005 rather than being returned to gaol. He said this was by reason of the favourable comments made by Mr Nguyen, his CREDIT/Bail Case Manager.
14. The applicant’s mother, Mrs Loung Chhour gave evidence. She adopted a statement completed by her on 19 May 2006 as her evidence-in-chief.
STATEMENT
I, LOUNG CHHOUR, pensioner, of 1 Doris Court, Springvale, STATE AS FOLLOWS:
1.I am the mother of the applicant Pheap Say. I am an Australian citizen. I am currently engaged in home duties, including looking after my youngest daughter Cindy Chhour, aged 7.
2.I was born and raised in rural Cambodia. In 1975 Pol Pot took over the country. Most of the people from the countryside were forced into slave labour camps. I was detained at a camp in the Battambong Province and forced to farm wheat and rice. The camp was like a Nazi concentration camp. Many people died.
3.My parents were acquainted with the family of Heng Say. They arranged for us to be married. We were married while living in the camp. On 1 September 1977 our son, Pheap, the applicant, was born.
4.In 1979 the Vietnamese Army joined with opponents of the Pol Pot regime and invaded the country. A lot of people were released from the labour camps. However, there was shooting everywhere and the countryside was not safe. My husband and I walked across the border to Thailand where we stayed for about six months in a refugee camp. We then returned to Cambodia where our eldest daughter Mom (Sreiy) was born on 20 March 1980. The following year our daughter Sophee was born (10/10/1981).
5.These times were very difficult as there was war going on and the countryside was very poor. In the meantime my parents had left Thailand for Australia. They sent a notice to be posted in the city looking for myself and my family. This notice was seen by a friend of my husband, who told us about it. We were able to get into contact with my parents in Australia.
6.In 1983 we returned to Thailand and again stayed in a refugee camp, this time for approximately two years. My parents then sponsored us to come to Australia.
7.We first lived at the migrant hostel in Westall Road, Springvale for about three months and then moved to Clayton where we stayed for about one year. After that time we moved to a townhouse, again in Westall Road, for about one year. Our son David was born at this time.
8.In 1987 we moved to my current address, 1 Doris Court, Springvale.
9.My husband was very strict at first and raised Pheap the way a child would be raised in Cambodia. Occasionally he physically disciplined Pheap. However Pheap was a quite obedient boy. When he was in primary school he was a good student and behaved well. However, when he got to high school he got caught up in the wrong crowd and began to get into trouble.
10.In 1992 my husband Heng left the family home. I discovered that he had been having an affair. He went to live with this other woman.
11.When he was 17 years old Pheap left home to live with friends. These people were involved in crime and used drugs.
12.Over the next 10 years Pheap moved back home from time to time but would often go out and get into trouble with these people. I know he often tried hard to look for work, but it was very difficult for him. He would get caught up with his old friends and continue to use drugs. His friends were just bad people.
13.In 2003 Pheap tried to do Year 11 at Holmesglen TAFE, but before long he dropped out of school and later that year went to gaol.
14.He was released from gaol in May 2004 and returned to live with me at Doris Court. I could see this time he was really trying hard to stay away from his old friends.
15.I have a young daughter, Cindy, born on 3 November 1998. Pheap gets along very well with Cindy. When he was living with me they would spend a lot of time together. They watched television and went bike riding together. He would also take her to McDonalds for lunch.
16.Since coming out of gaol in 2004 Pheap has given me a lot of help. I have arthritis in my right hand, which is especially bad during cold weather. Pheap assisted me by gardening and cleaning up around the house. He also gave me money to help with the bills when he was working as a seasonal fruit picker.
17.About 12 months ago he moved from my home to live with his brother and sister at 13 Finisterre Drive, Keysborough. However, he would still visit Cindy and I almost every day. He was working hard and has been staying away from his old friends.
18.I am very worried about the possibility that he may be forced to go back to Cambodia. He has no relatives there. Our family is from the countryside which is the poorest part of a very poor country. There are no relatives that could support him if he was forced to go back. There is nothing in Cambodia for him.
19.The country is still not safe. It is especially dangerous in the countryside.
20.I know that he regrets the bad things that he has done in the past. I feel somehow that it is partly my fault that he has got into trouble because when he was younger I was too busy working and didn’t have time to look after him properly. In recent times I have seen that he has wanted to change his ways and I believe that he has now changed very dramatically. I ask the Tribunal to allow him to stay. I believe that Pheap will be able to make it through his life without using drugs any more and without breaking the law. Everyone in the family is willing to help him.
21.Most of all, I know that Cindy will miss Pheap very badly if he must return to Cambodia. None of the children have returned to Cambodia. I went back once with my daughter Cindy but I know that it would be impossible for Pheap to live there. We are not wealthy people so we could not visit him very much. He would lose all his family if he were forced to go back to Cambodia.
15. Mrs Chhour corroborated her son’s evidence that he had lived with her upon his release from gaol in 2004 for seven or eight months but then moved away from Springvale to live with his sister Sophee in Keysborough. She said her son visits on three or four occasions per week and assists her around the home and also gives her money from wages that he has earned. She said that her son is a different person since 2004 to the extent that he has largely succeeded in remaining away from drugs and the commission of crime. He has become more focussed on membership of the family and in turn all family members are very supportive of him.
16. Mrs Chhour said that she is now an Australian citizen and would find it extremely difficult to visit Mr Say in Cambodia in the event that his visa was cancelled. She said that the relationship between Mr Say and Cindy would be adversely affected and did not regard his prior conduct as a negative influence on her. Mrs Chhour had recently visited Cambodia on a holiday and thought that in the event that her son was returned, he would find it very difficult to obtain employment. She also thought that he would have difficulty communicating in the Khymer language.
17. The applicant’s sister, Sophee Say gave evidence. She adopted a statement completed by her which is undated and reads as follows.
STATEMENT
I, SOPHEE SAY, Architectural Draftsperson of 13 Finisterre Drive, Keysborough, STATE AS FOLLOWS:
1.I am the sister of the applicant, Pheap Say. I am an Australian citizen and was born on 10 October 1981 in Cambodia.
2.I came to Australia with my parents, Pheap and Sreiy my older sister in 1985. I have no memory of being in Cambodia and Thailand, where we were waiting for two years before being accepted to Australia. I have never been back to Cambodia.
3.When we were growing up in Melbourne our father was quite strict. At first Pheap was an obedient child, but when he began attending Westall High School, a very rough school, he began to get in trouble and using drugs. From that time onwards for many years he was committing criminal offences to get money to survive and for drugs.
4.I understand that he has been in a lot of trouble over the years. However, since coming out of gaol in May 2004 I have seen Pheap trying really hard to stay out of trouble. Most importantly he is staying away from the bad friends with whom he previously used drugs and committed crimes.
5.For about one year after getting out of gaol he lived with my mother at 1 Doris Court, Springvale. Whilst living there he provided financial help to my mother and assisted her around the house. He also looked after my younger sister, Cindy, by taking her out and just spending time with her. They have a very close relationship.
6.About 12 months ago Pheap came to live with us. During this time he has been working really hard, often 5, 6 or 7 days per week. He works as a fruit picker, so the work is not always available, but he has always worked when he can.
7.Of recent times I am aware that he has gone on a buprenorphine program to help him stay away from heroin. I believe this has been successful and, in my view, since he has come to live with us, he appears a lot healthier than he did before. I believe that he is not using drugs at this time.
8.In the time that Pheap was living with us, he regularly visited my mother and Cindy. In fact he saw them almost every day. He has provided a lot of help to my mother, who suffers from arthritis in her right hand and cannot do everything around the house.
9.My brothers and sisters speak English amongst ourselves. When we speak to our mother, who does not speak English very well, we use a combination of broken Khmer and broken English. Pheap does not speak Khmer very well at all and would have a lot of trouble fitting in if he was forced to return to Cambodia. The whole family is very worried for him if he was forced to return.
10.On the other hand, we feel that he has overcome his drug addiction and are confident that with our love and support in the future he will not commit any further crimes in Australia. We are all prepared to provide whatever help he might need.
11.I ask the Tribunal not to tear our family apart by sending our eldest brother back to a country in which he would not cope.
18. Sophee said that she also attended the Westall Secondary College as a student. She said that many students smoked and abused illegal substances at school, with the knowledge of teachers who ignored that behaviour in fear of reprisal from the students. She thought that her brother’s association with drugs commenced by his association with other students at that school.
19. Since Mr Say’s release from gaol in 2004, Sophee noted that he has been more communicative with her and other family members, has demonstrated a willingness to remain drug free and to be a better citizen. She noted that he had been engaged in employment and had been earning income. She also observed that he was “healthier”, spent a great deal of time with Cindy and had spoken to her and other family members about the negative consequences of consuming drugs. She said that her brother would not “survive” in Cambodia because of his poor command of the Khymer language and because there are no family members or friends to support him.
david and sreiy mom say
20. The other Say children, David and Sreiy Mom, also completed statements which were received into evidence. Both David and Sreiy Mom did not give evidence but were present at the hearing. Their statements also corroborated the evidence of Mr Say, Sophee and Mrs Chhour namely, that Mr Say has made a commitment to remain drug free and to avoid associating with persons who were influential in him having previously committed crime. They confirmed that he has moved away from the Springvale district, that he has been supportive of Mrs Chhour and has developed a close relationship with Cindy. David particularly referred to his close relationship with Mr Say and the support that he had been given by him at school and the encouragement and counselling he had been given to avoid drugs. Both Sreiy Mom and David expressed their concern at the consequences for Mr Say in the event that he was returned to Cambodia and the loss that would be endured by the family in his absence.
detective senior constable bobetic
21. Mr Bobetic is currently a serving Victoria Police Force Member at the Glen Waverley Police Station. He wrote a letter on 22 April 2004 following a notice that had then been issued and served and which was part of the T‑documents lodged by the respondent at the commencement of these proceedings. On the evening prior to the commencement of this hearing he also lodged a Statutory Declaration. Both documents are referred to below.
1.On the 31st of March, 2003, I arrested and charged Pheap SAY for multiple dishonesty offences including handling stolen goods, theft and obtaining property by deception.
2.SAY is a citizen of the Kingdom of Kampuchea but has a temporary visa allowing his stay in Australia. SAY has been found guilty of these offences and convicted being imprisoned. In my numerous encounters with SAY I have found him to be extremely dishonest. He will not admit to any offences, will not assist any police investigation to locate stolen property taken by him and is evasive as to his movement and where he lives. SAY is a drug addict. I believe that SAY, if allowed to remain in Australia, will continue to commit serious crimes.
3.It is recommended and requested that SAY be considered seriously for deportation. He is very dishonest and is often armed with sharp edged weapons. I believe that his is [a] threat to the community.
4.Report forwarded for information and consideration, Officer in Charge, Glen Waverley C.I.U.
STATUTORY DECLARATION OF DETECTIVE SENIOR CONSTABLE IVAN BOBETIC
I, Ivan Bobetic, Police Officer, of 643 Ferntree Gully Road, GlenWaverly in Victoria do solemnly and sincerely declare that:
1.I am a Detective Senior Constable in the Victoria Police seconded to the Glen Waverley Embona Armed Robbery Taskforce. I was previously stationed at the Springvale Police Station from May 1999 to November 2003.
2.When I was stationed at the Springvale Police Station, I came to know Pheap Say, the applicant in these proceedings as part of my duties. I was told about the applicant by other police at the Springvale Police Station because of ongoing investigations involving the applicant and because he was generally a person of interest to the police.
3.While I was stationed at Springvale, I spoke with the applicant in relation to various investigations on approximately ten occasions and I was involved in arresting the applicant on approximately four occasions. I was the informant in relation to the offences the applicant was charged with on 31 March 2003. These matters related to handling stolen goods, obtaining property by deception and possession of a weapon.
4.In all of my dealings with the applicant, I have found the applicant to be uncooperative and evasive. He has been evasive about his movements and his place of residence. When I questioned the applicant about the offences where I was the informant the applicant made partial admissions to the offences.
5.I know from personal knowledge that the applicant was a heroin user during my time at the Springvale Police Station. I also believe that he was involved in the sale of heroin on the streets of Springvale. The applicant also dealt in stolen property and has committed other offences to help finance his drug use.
6.From the times I have interviewed the applicant and the times I have been involved in the applicant’s arrest, I know that the applicant is often armed with knives and other sharp-edged weapons such as syringes. I found such weapons on the applicant when I was the informant.
7.On one occasion in December 2001 I was involved in the investigation where the applicant threatened a member of the public with an antenna when he was caught in the middle of breaking into a car.
8.I have been shown a copy of a letter dated 22 April 2004. I state that the contents of this letter are true and correct.
I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties of perjury.
22. In evidence, Mr Bobetic said that he had spoken with Mr Say on approximately 10 occasions but had been an informant on one occasion only in Magistrates’ Court proceedings.
23. With respect to his letter of 22 April 2004, he said the use of the word “multiple” was intended by him to mean “more than one”. He said the belief that he held of Mr Say having a “temporary” visa was based on information that he had received from a departmental officer however, he now acknowledged that Mr Say had at all relevant times lived in Australia on a permanent visa.
24. With respect to his reference to Mr Say being “armed with sharp edged weapons”, he said that was a reference by him to the possession by Mr Say of syringes which he said would have been used by reason of his drug habit. He said there was no information which would suggest that the syringes had been used for the purposes of commission of crime. He said police officers knew that Mr Say did possess syringes but he had not ever been charged with such possession.
25. Mr Bobetic said that he had previously been stationed at the Springvale Police Station. The Westall Secondary College was not in the Springvale police district however, he was aware that whilst it had become a more respected institution in recent years, it previously had “its share of problems” and he had attended the school previously as a backup to police members from the Oakleigh and Clayton police stations.
26. Mr Bobetic said that he would prefer that Mr Say stay away from the Springvale shopping district because in that precinct it is well known that crimes are committed.
confidential progress report
27. The report (refer paragraph 7) prepared at the initiation of the Dandenong Magistrates’ Court is dated 13 January 2006 and arises out of counselling undertaken by Mr Say with Mr John Burt at the Salvation Army – Positive Lifestyle Centre in Dandenong. The report records that Mr Say frequently attended for individual counselling, with Mr Burt, having previously been assessed under a “Drug and Alcohol Treatment Plan”. That assessment was also conducted at the Lifestyle Centre. The report records the date of attendances by Mr Say and comprised 19 in number between 13 September 2005 and 12 January 2006. On some occasions Mr Say did not attend because of work commitments and appointments were rescheduled. Mr Nhat Nguyen, a Bail Case Manager, who has also had considerable contact with Mr Say, prepared a report in the following terms:
Mr Say is a 28 year old man from Cambodian cultural background who arrived in Australia as a refugee in 1985. Mr Say has experienced significant difficulty since his arrival in Australia including settlement and language difficulty and the trauma of being a refugee.
Mr Say has responded extremely well towards the CREDIT/Bail program and as a result has achieved positive outcomes. Mr Say has struggled with drug use since the age of 13 and has been involved in the criminal justice system for the past 10 years. However since his commencement with the CREDIT/Basil [sic] Program he has turned his life around and has made concerted effort to address his drug use.
Information from the Counsellor (Mr Burt) indicated positive progress on Mr Say’s part in addressing his drug use. Throughout the CREDIT/BAIL period, Mr Say has maintained an excellent level of attendance and engagement in counselling and was always polite, cooperative and willing to discuss/address issues surrounding his drug using behaviour. Most recent report from the Counsellor indicated that Mr Say has displayed an understanding of addictive behaviour and motivation, discipline and willingness to make change. Mr Say is currently putting in place strategies he has learnt to combat his inappropriate behaviour patterns. Further, Mr Say has shown willingness to continue with counselling upon the completion of his CREDIT/Bail Program.
The Counsellor also reported in recent report that Mr Say has made a great leap forward in his cognition in regards to his drug use. Initially Mr Say was not able to see any hope of being rid of drugs; however he is now calm, confident and committed to keeping drug free. Mr Say has made the transition from Stage 2 (Contemplation) to Stage 3 (Taking Action).
Mr Say has utilised the support provided by the writer effectively and receptive to suggestions given by the writer. One example of this was his discussion around risk issues and the recognition that he is at high risk of relapse over the Christmas/New Year period without any forms of maintenance. He subsequently arranged and placed himself on the Buprenorphine Program as suggested by the writer.
Another achievement on Mr Say’s part is his commitment to full time work and most notably his distance from negative environment and away from the Springvale Shopping Centre. This was observed and confirmed by Informant Symmons from Springvale Police. With regards to full time employment, Mr Say initially commenced working as a fruit picker and within one month progressed to a supervisory role due to his hard work and leadership skills. He is currently supervising 15-20 workers at any one time.
Mr Say reported to have developed a more close and supportive relationship with his family. He is currently participating in most of the family’s activities and has regained their trust and support. In addition, Mr Say has been given more opportunity within the family with regards to decision making, which appears to enhance his self-esteem and confidence significantly. In recent conversation with the writer, Mr Say revealed that he has developed a stable relationship with a girlfriend and is getting married in May 2006.
Recommendations
Mr Say’s attendance and progress in treatment has been excellent. Both Mr. Burt and the writer (in various face to face reviews), have noticed a substantial change in Mr Say’s demeanour. Mr Say is a highly motivated and intelligence [sic] person and has an unlimited potential to achieve anything he sets his mind to. Your Honour, the writer has elaborated more than usual in his assessment of Mr Say’s growth. Here is a person who has had a long history of substance abuse and associated offending and who has also suffered the deleterious effects of low esteem. He has however, taken the proverbial and has literally turned his life around. Such effort and growth must be applauded and Mr Say’s willingness to confront his situation epitomises why the CREDIT/Bail support program exist. As such, Mr Say has successfully completed the CREDIT/Bail support program.
The writer would like Your Honour to consider the following: (1) that Mr Say continue with counselling and treatment, and (2) that Mr Say has further opportunity to establish positive progress made to date.
It is therefore that the writer respectfully recommended that Your Honour consider that the CREDIT/Bail Program be removed from Mr Say bail conditions.
28. In an extract from the “Guide To Court Support Services” published by The Magistrates’ Court of Victoria in 2005, the objectives of the CREDIT/Bail Support Program and the outcomes of that program, are recorded as follows:
The Objectives Of The Credit/Bail Support Program Include To:
vProvide early treatment and access to drug treatment/rehabilitation programs
vProvide access to accommodation, welfare, legal and other community supports
vProvide clients’ and the court with monitoring and support of clients’ [sic] on the program for a period of 3-4 months
vMinimise harm to the client and the community by addressing the issues related to substance abuse
vReduce risks of further re offending
Outcomes Of The Credit/Bail Support Program
The CREDIT/Bail Support Program aims for the following outcomes:
v Successful completion of bail by defendants who would otherwise be remanded in custody
v Reduction in the number of defendants remanded due to lack of accommodation or treatment/support in the community
v Long term reduction in involvement of defendants in the criminal justice system
v Successful placement of defendants in drug treatment/rehabilitative programs.
ombudsman’s report
29. Mr Hughan drew attention to conclusions reached by the Ombudsman at Part 4 of his report with respect to s 501 and its application to long-term permanent residents. At paragraph 4.7 and 4.8 of the report the Ombudsman recorded as follows:
4.7 The quality of DIMA’s administration of s 501 cases could be significantly enhanced if the recommendations outlined above are accepted and implemented.
4.8 Even if this were to occur, there is a remaining issue to do with the fairness and reasonableness of the extensive application of s 501 to long-term permanent residents. This concern is the more acute in cases where s 501 has been used in circumstances where s 201 could not be used. It is ultimately for the Minister to decide when s 501 is to be used, but it is nevertheless appropriate in this report to question whether s 501 should be applied to a person who meets the following criteria:
• arrived in Australia as a minor and spent his or her formative years in Australia
• has effectively been absorbed into the Australian community, using criteria similar to those considered in relation to s 34
• has strong ties – particularly strong family ties – to the Australian community
• has no ties with the likely receiving country and return there would impose hardship in terms of language, culture, education and employment
• has family members in Australia who would face hardship as a result of the visa holder’s separation from them
• could not be removed under s 200 criminal deportation provisions
• would not constitute a significant risk to the Australian community if released from detention.
direction 21
30. Part 2 of Direction 21 applies in the present case because Mr Say does not pass the “character test”. Part 2 determines the regard that must be had to matters which are specified when exercising the discretion as to whether a non-citizen should be permitted to remain in Australia. There are three “primary considerations” and they are:
(a)The protection of the Australian community; and members of the community;
(b)The expectations of the Australian community;
(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.
31. The “primary considerations” of “protection of the Australian community and members of the community” comprises a number of criteria which must also be considered and will be referred to in the discussion below.
32. The primary factor of protection of Australian community has three elements being the seriousness and nature of the conduct, the likelihood that the conduct may be repeated (including any risk of recidivism) and whether visa cancellation may prevent or discourage similar conduct (general deterrence).
33. Direction 21 clearly records that examples of offences regarded by the Government as being very serious include the distribution, trafficking or selling of illicit drugs. Direction 21 records that persons engaged in that behaviour show a “callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people”, persons who profit from the supply of drugs, whether or not motivated by their own need for illicit drugs, are regarded as extremely serious offenders and offences involving dependency or addiction upon heroin are also of concern to the Government and the community.
34. That criteria alone might indicate that persons involved in the distribution, trafficking or selling of drugs particularly heroin, should have their visa cancelled. However, Direction 21 requires the exercise of a discretion. Decision-makers are required to “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”. It therefore follows that consideration of the criminal conduct of the applicant alone would be wrong because to do so would not involve the exercise of a discretion.
35. The prevalence of drugs in the community and the harm experienced by those who consume them, and their family and friends, is well known. Those that traffic or distribute drugs of course are subject to criminal sanction and frequently are. Mr Say is no exception. His conduct in distribution of drugs has caused him to be subjected to multiple periods of imprisonment which, until 2004, it would appear, did not cause him to modify his behaviour. His evidence was that his distribution of heroin and other illegal substances was motivated by his need to obtain monies to purchase other drugs or to be paid in kind to satisfy his own addiction. That is to say, on his evidence, he did not “profit” from his distribution. Nonetheless Direction 21, which I am obliged to acknowledge and follow, does not distinguish between non-citizens who are motivated by profit or those that are motivated by “their own need for illicit drugs”. For the purposes of this analysis I interpret the words “own need” as referring to a person’s addiction.
36. Mr Say also has convictions for crimes of violence. Both representatives conceded that those offences should be viewed in the context of Part 2.6(n) of Direction 21 which refers to “any other crimes involving violence or the threat of violence” as opposed to 2.6(f) which refers to “murder, manslaughter, assault or any other form of violence against persons”. In my view the concessions made by both representatives are appropriate. The offences of “assault or any other form of violence against persons” in the context of murder and manslaughter against 2.6(f) clearly suggest a crime of such a serious nature that far greater weight would be given to it than the offence of “any other crimes involving violence or the threat of violence” against 2.6(n). Weight will be given to those offences but as I indicated, of a lesser degree.
37. The likelihood that Mr Say’s previous conduct may be repeated is a factor relevant to Direction 21. This is because Part 2.10 dictates that a non-citizen with several previous convictions should be considered as having an increased risk of recidivism. Where there is a gap between convictions, an inference is open that any substantial period is not a reliable indicator against the likelihood of future offences being committed. Additionally, the likelihood of a repeat of previous conduct may exist if offences have been committed after having previously been warned about the risk of cancellation.
38. The latter aspect applies in this case because prior to the notice which has given rise to the decision under review, Mr Say was given two notices of intention to cancel his visa. Whilst they might not constitute a warning, Mr Say was given a notice on two occasions, which I find as a fact were served, and of which he understood the content notified him of an intention to cancel his visa. Despite those notices, he offended.
39. Mr Say’s past history of offending is inglorious and on one view persons might be concerned that his past history will be repeated.
40. As against this there is much to suggest that Mr Say has made positive steps to refrain from drug use and therefore refrain from committing crime. Paragraph 2.10(c) permits consideration of rehabilitation to date and positive contributions that the person might be expected to make to the community. Mr Say has received an excellent report from the CREDIT/Bail supervisor (refer earlier), he has not been gaoled for two years and has expressed comments at the hearing of a positive nature which might give some comfort to the prediction that the likelihood of repeating his past criminal behaviour is far less than it might have been predicted some years ago.
41. The remaining issue under this part is of general deterrence. That is, is there a likelihood that visa cancellation would prevent or inhibit the commission of similar offences by other persons. Direction 21 (2.11) records that general deterrence is an important factor and the “nature of the offence” may compel visa cancellation. In turn, visa cancellation may discourage or prevent other persons from engaging in similar criminal schemes.
42. The language of this Part is couched in very broad terms. The issue of “general deterrence” of itself is by no means clear and operates in my view more in the nature of expectation rather than certainty. Deterrence also assumes that knowledge of the matters under consideration and decisions of Courts and Tribunals will find its way into the general public. In Re Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585, the Tribunal was satisfied that “in this matter the general deterrent effect is not significant, and there is no suggestion that the applicant was involved in a criminal scheme” yet, on balance, “this consideration points in favour of cancellation of the visa”. The Tribunal in Re Otene and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 142 posed the question “Does the news of what happens to a person travel through the community . . .” and concluded, in the absence of an answer, that the proposition was speculative. I respectfully agree.
43. At its highest it seems to me that if publicity were to attach to this application, non-citizens, who had committed similar crimes, or were intending to commit similar crimes, may accept that their past or intended behaviour puts them at risk of visa cancellation. If that belief is held, they may then be deterred from committing similar offences.
44. In concluding this Part concerning the “protection of the Australian community”, I would attach considerable weight to the numerous offences committed by Mr Say over many years which have caused harm and injury to many persons. His behaviour was disgusting and beyond his immediate family, it may be many years before the broader community is tolerant and trusting of him. His residency in Australia, as was submitted by Mr Wee, is one of privilege and by reason of his status as a non-citizen, he is at considerable risk of being returned to his country of birth.
45. On the other hand, and of course in the exercise of a discretion given under Direction 21 (which specifically refers to the “weight of considerations” and the need “to balance a number of important factors”) (refer 2.1 and 2.2) attention must also be directed to those matters for which weight should also be attracted.
46. Mr Say entered Australia as a young person having spent many years previously in an immigration detention camp in Thailand after his parents left the ravages of Pol Pot in Cambodia. He was accepted into Australia under a humanitarian program and has subsequently been given permission to reside here. His primary schooling was apparently uneventful but when he came into contact with other young teenagers in secondary school he was exposed to anti-social behaviour which also involved consumption of heroin. Whilst previous generations of Australians, and perhaps current, may be exposed to cigarette smoking or alcohol at an early age, resistance from future consumption apparently is nowhere near as difficult as resisting heroin once first tried. It would appear from many other applications before this Tribunal, and no less the current application, that its addictive properties are so overwhelming that the need to continue consuming causes persons to descend into crime.
47. All of Mr Say’s offences have their origin or close association in his heroin addiction. That commenced at a very early age and his criminal behaviour continued until about 2004. Of course it is true that he voluntarily administered heroin. But how much freewill and conscious knowledge was then involved in the context of a young teenager who, a few years earlier, had been born in a country where its citizens were being exterminated and who then found himself displaced in a foreign country with thousands of others. He undoubtedly would have been exposed to the bravado of youth. Mr Nguyen describes Mr Say as a person of low self esteem. Mr Say, recorded in his statement that he administered heroin to be “cool”.
48. On his evidence, he committed offences not to gain profit but rather to acquire monies to purchase heroin for his own use or to be “paid in kind”. He does not now resile from his previous behaviour. On his evidence, Mr Say acknowledges that he has hurt many other people. He has attempted drug and alcohol counselling in the past but also acknowledges that he was unsuccessful and little effort was made by him to ensure its success. For reasons however which are not clear, the program he recently completed at the direction of the Dandenong Magistrates’ Court does appear to have had a positive influence as may be see from the comments made by the supervising counsellor, Mr Nguyen. Mr Say has not been in prison for two years and whilst he did relapse in the middle of last year, his good conduct since 2004 apparently impressed the supervising Magistrate because he was placed on an intensive corrections order rather than being returned to gaol.
49. I should digress at this stage and acknowledge, as advised by Mr Hughan, that an intensive corrections order is a phenomena under the Victorian Sentencing Act which empowers a Magistrate to direct an offender to attend community work and educational and rehabilitation programs for specified hours each week in lieu of a gaol sentence. Failure to comply with such an order results in imprisonment. In the present case, the intensive corrections order was made after the report of Mr Nguyen was filed in the Dandenong Court in February this year. Mr Say has lodged an appeal to the County Court against the duration of the ISO, (12 months). That is a matter for him and his lawyers. Perhaps it was the intention of the Magistrate to ensure that the risk of committing further crime could be eliminated by having him undertake community work and educational rehabilitation programs for the period of 12 months. The reasons of the Magistrate are not known. Nonetheless, with the prior criminal history of Mr Say and the frequency of his terms of imprisonment, it is not hard to imagine that there was a very strong prospect of him being returned to gaol. The report of Mr Nguyen predicts a very positive outcome to the rehabilitation which has been commenced and which will hopefully continue. It is to Mr Say’s credit that he has positively embraced the rehabilitation opportunity now available to him thereby also creating some confidence that he will not re-offend. The likelihood of recidivism is much less than what might have been expected in previous years.
expectations of the australian community
50. Direction 21 expresses concern that if non-citizens fail to obey Australian laws it may be appropriate to cancel the visa being held. Additionally, it may be appropriate to make such a decision because character concerns are of such a level that the community would expect that the person would be removed from Australia.
51. Clearly, there are some offences which are of such a magnitude or the likelihood of further offending is so great that non-citizens should be removed from the country to which privilege of residence has been granted. On the other hand, whilst offences may have been committed, the Australian community would, in my view, exercise tolerance, humanity and forgiveness to those who have offended but have taken positive steps to ensure previous criminal conduct will not be repeated. If the circumstances of the present application are examined rationally and with compassion it is my view that the Australian community would not demand a visa cancellation.
the best interest of the child
52. This criteria is not confined to children of whom the non-citizen is the parent (refer Re Johnson and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 304; Taylor v Minister for Immigration and Multicultural Affairs [2004] FCA 1081).
53. The relevant “child” in this application is Cindy, being Mr Say’s step sister. She is presently seven years of age. It is true for the first four or five years of her life she would have been exposed to Mr Say only when he was out of gaol. However, in the last two years, based on Mr Say’s evidence alone, together with that of his mother, sisters and brother, a close relationship has emerged where Mr Say is now in what appears to be a relationship mixed between a bigger brother or a type of parent. They both interact frequently and considerable harm in my view would occur, particularly to Cindy, if Mr Say were returned to Cambodia.
other considerations
54. In this part I have been mindful of the decision of the Court of Appeal of the Supreme Court of Victoria in R v McKee Brooks [2003] VSCA 16 where the Court referred to sentencing considerations with respect to persons who committed crime when addicted to heroin. Whilst the Court dismissed the appeal against severity of sentence, (because the sentence imposed was within the range which a reasonable judge could impose in the circumstances of the case) the Court did make considerable comment concerning the relationship between drug addiction and criminal behaviour. Buchanan J said that the first use of heroin was by “impulse rather than premeditation or careful planning”. He noted that the sentencing judge took account of the crimes being committed under the influence of the heroin addiction and the efforts made subsequently to end that addiction. Vincent J recorded that he accepted “that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which in some circumstances they may never completely escape”. He referred to “the moral culpability” of a person who offends when considering a period of sentence. Buchanan J also referred to the same concept and expanded his analysis by deciding that issues of rehabilitation and the prospect of success of it is to be taken into account when sentencing.
55. Whilst the Court concluded that drug addiction will not excuse crime, the circumstances of persons who are addicted and who commit crime, must be thoroughly examined and considered when sentencing.
56. In my view similar considerations apply in the present application. On the one hand, Mr Say’s drug addiction will not excuse his previous behaviour but will explain it. His entry into rehabilitation programs and the positive comments made by Mr Nguyen are also to his credit.
57. Allsop J in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7 was obviously alert to the consequences of visa cancellation in the case of a person who committed offences by reason of heroin addiction from an early age. The affect upon the non-citizen, his family and the expectations of the Australian community in such a case were discussed. It is a powerful and moving Judgment and reinforces the need to balance the Direction 21 criteria with other considerations, no less, the emotional and familial consequences of a visa cancellation.
conclusion
58. Visa cancellation would cause Mr Say to leave Australia where he has resided for approximately 20 years. He would be forced to return to a country with which he has no association other than by birth. He barely comprehends and speaks the Khymer language and removal to Cambodia would cause him to be isolated and destitute. He has no family who reside in Cambodia and has no associates. On the evidence, the prospect of obtaining employment is remote. Whilst the country is apparently more settled than it was 20 years ago, his security cannot be assured. There is a risk of him re-offending in the event that he returns to Cambodia. If he is prohibited from living in Australia he will lose contact with his mother, brother, sisters and Cindy who are all Australian citizens. His family will be denied the income that he is able to earn in employment and from the intended self-employment which he proposes to commence with other family members. The family constellation which has apparently been strengthened over the last two years, whilst he has not been in prison, will be broken. The applicant has provided wise counsel to his younger sisters and brother, based on the experience of his past behaviour, and return to Cambodia will therefore deny his family the opportunity to benefit from him. He has successfully been engaged in rehabilitation, not imprisoned for two years and but for one relapse last year, has been drug free.
59. Whilst Mr Say is not an “absorbed person” within s 34 of the Act or within the meaning which gave rise to the concluding paragraphs in Nystrom, Mr Say has resided here for 21 or his 28 years. Cancellation of his visa under s 501 (or any other provision) would be inappropriate and would be inconsistent with the comments of the Court in Nystrom, the recommendations of the Ombudsman (refer earlier) and the discretion which I propose to exercise in his favour.
60. In all of the circumstances, whilst considerable weight should be attached to the past behaviour of Mr Say, I am of the view, on balance, that greater weight should be given to the other factors discussed above. I am satisfied that the visa currently held by Mr Say should not be cancelled.
61. The decision under review should therefore be set aside.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 19 May 2005
Date of Decision 25 May 2006
Counsel for the Applicant Mr G Hughan
Solicitor for the Respondent Mr Bryan Wee
2
9
0