Tang and Minister for Immigration and Citizenship
[2012] AATA 330
•1 June 2012
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2012/1033
GENERAL ADMINISTRATIVE DIVISION )Re:BA THINH TANG
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
CORRIGENDUM TO DECISION [2012] AATA 330
The Tribunal amends its decision of 1 June 2012 as follows:
1.In the sixth sentence of [86] insert “not” so that the sentence reads “This is a friend whom he knows is not a drug user.”; and
2.In [105] delete the second sentence and extend the first so that the paragraph reads “Mr Tang, I find, was formally advised by the Department on 19 July 2010 that his visa might be cancelled if he committed further offences or otherwise breached the character test but it was returned to the Department unclaimed.”
S A Forgie
Deputy President
CATCHWORDS – IMMIGRATION – visa – cancellation – character test – whether discretion should be exercised to cancel visa – decision affirmed.
PRACTICE AND PROCEDURE – summonses – enforcement – production of documents – grounds of objection – means of restricting use and disclosure of documents if inspection order made.
Applicant VEAL of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; 80 ALJR 228; 87 ALD 512
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Australian Securities Commission v Zarro (1992) 36 FCR 40
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125; 124 ALR 493
Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259
Kioa v West (1985) 159 CLR 550
Lucas Industries Lt v Hewitt (1978) 18 ALR 555
Mandic v Phillis [2005] FCA 1279; 225 ALR 760
Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1
Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68; 47 AAR 487
Marks v Beyfus (1890) 25 QBD 494
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; 111 ALD 15; 83 ALJR 1123
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
Otter Gold Mines Ltd v McDonald [1] (1997) 76 FCR 467; 48 ALD 222; 147 ALR 322
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203
Prudential Assurance Co v Fountain Page [1991] 3 All ER 878; 1 WLR 756
R v Barton [1981] 2 NSWLR 414
Re Basile and Minister for Immigration and Citizenship [2010] AATA 556
Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696
Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361; 109 ALD 217; 50 AAR 191
Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262
Regina v Richard Lipton [2011] NSWCCA 247
Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22
Sankey v Whitlam [1978] HCA 43; 142 CLR 1; 21 ALR; 53 ALJR
State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200
Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323
The Commonwealth v Northern Land Council (1993) 176 CLR 604
Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90
Waind and Hill v National Employers’ Mutual General Association Ltd [1978] NSWLR 372
Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1
Acts Interpretation Act 1901 s 33(3)
Administrative Appeals Tribunal Act 1975 ss 3(1), 40(1A) and (1D), 63(5)
Evidence Act 1995 ss 3(1) and 4(1) and Dictionary
Legislative Instruments Act 2003 s 13(1)(a)
Migration Act 1958 ss 499, 499(2A), 500(6A)-(6L), 501(2), (6), (7) and (12)
Administrative Appeals Tribunal Regulations 1976 r 15, Schedule 1, Form 8
Corrections Act 1986 (Vic) ss 30, 30(1), (2) and (3), 69(2), 72(7)
Freedom of Information Act 1982 (Vic)
The Security Division of the Administrative Appeals Tribunal - Procedural Fairness, Hearings and Decision-Making in the Security Context of the Administrative Appeals Tribunal; Justice Garry Downes AM; Paper presented to the Australian Government Solicitor Administrative Law Symposium, Sydney University Law School 26 March 2010
DECISION AND REASONS FOR DECISION [2012] AATA 330
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2012/1033
GENERAL ADMINISTRATIVE DIVISION )
Re: BA THINH TANG
Applicant
And: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 1 June 2012
Decision:The Tribunal affirms the decision of the respondent dated 9 March 2012.
S A Forgie
Deputy President
REASONS FOR DECISION
Mr Ba Thinh Tang was granted a permanent visa Class BB-Subclass 155 on 4 November 2000. On 9 March 2012 a delegate of the Minister for Immigration and Citizenship (Minister) cancelled Mr Tang’s visa. He did so after first concluding that Mr Tang comes within the criteria specified in s 501(2) of the Migration Act 1958 (Migration Act) i.e. the delegate reasonably suspected that Mr Tang does not pass the character test prescribed under s 501(6) of the Migration Act and Mr Tang had not satisfied him that he had passed that test. The delegate then exercised his discretion to cancel Mr Tang’s visa.
I am satisfied that Mr Tang does not pass the character test because he has been sentenced to terms of imprisonment totalling two years or more. That means that he has a substantial criminal record[1] and so does not pass the character test by reason of s 501(6).[2] Therefore, I am also satisfied that Mr Tang meets the criteria in s 501(2). That means that the Minister has power to cancel his visa. On review, I have that power but it is a discretionary power that must be exercised while complying with written directions that the Minister has given about the exercise of his power to cancel a visa. I have taken those directions into account and have also listened to Mr Tang, his daughter and her grandmother as well as to Dr Ngo who appeared on Mr Tang’s behalf. I have decided to affirm the Minister’s decision. My reasons are set out in the following pages.
BACKGROUND
[1] “For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; …”: Migration Act, s 501(7)(c). The term “imprisonment” means “… any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence”: Migration Act, s 501(12).
[2] “For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); …”
Mr Tang’s family
I accept Mr Tang’s evidence that he was born in Vietnam on 4 July 1972. He is the youngest of three boys. His two older brothers both live in Vietnam as does his mother who is aged in her early 70s. His two brothers are both in their early 40s. One owns his own business installing air conditioners. The other is a teacher. Two of his aunts live in Australia, five live in Vietnam and eight in the United States of America (USA). He has eight nieces and nephews in Australia, eight in Vietnam and ten in the USA. Three of his cousins live in Australia, four in Vietnam and ten in the USA.
His daughter, whom I will refer to as HD as she is only 12 years of age, lives with her grandmother, Mrs Thi Vinh Tran, in Melbourne. Living near Mrs Tran is her second born son and his family including his children. Mrs Tran came to Australia in 1992 with her daughter. At first, Mrs Tran lived with her second son and his wife and two children.
Work in Australia
On the basis of his evidence, I find that Mr Tang worked in a factory making windows and doors when he first arrived in Australia. He remained in that employment for approximately a year before leaving and taking up a job in his brother in law’s business pressing clothes. Mr Tang remained for a further year and then left to start doing farm work with his wife. That was in approximately 2001 and he continued with that work, which was seasonal, for about three years. He has not had a history of regular work since then.
Travel to Vietnam since arrival in Australia
Since Mr Tang arrived in Australia on 18 August 1999, he has travelled between Australia and Vietnam on the following occasions:[3]
[3] Exhibit 1 at 26
| Trip | Date | Departure | For/From | Arrival | Reason for trip[4] |
| 1. | 9 July 2002 | Australia | Vietnam | Mr Tang’s mother asked him to visit as she was sick. | |
| 8 October 2002 | Vietnam | Australia | |||
| 2. | 25 March 2003 | Australia | Vietnam | Mr Tang returned to sell his video business in Vietnam. | |
| 26 July 2003 | Vietnam | Australia | |||
| 3. | 5 August 2003 | Australia | Vietnam | Dispute about family land in Vietnam. | |
| 16 September 2003 | Vietnam | Australia | |||
| 4. | 28 April 2005 | Australia | Vietnam | Introduction to a woman but they had no future together. | |
| 26 May 2005 | Vietnam | Australia | |||
| 5. | 7 June 2007 | Australia | Vietnam | Holiday. | |
| 23 August 2007 | Vietnam | Australia | |||
| 6. | 26 February 2008 | Australia | Vietnam | Holiday and worked in brother’s air-conditioning business. | |
| 17 June 2008 | Vietnam | Australia |
[4] Answers given in cross-examination
Convictions, sentences and breaches of parole
Mr Tang has been convicted of a number of offences since his arrival in Australia. They are set out in the following table together with the sentences imposed. Decisions of the Board are also shown:
| Date | Court | Charge | Count | Result |
| 27/08/2001 | Melbourne County Court | Armed Robbery | 2 | 18 months on each count concurrent. Sentence suspended for 2 years under s 27 of Sentencing Act 1991 (Vic) (Sentencing Act). Property forfeited. Pay $437.50 restitution. |
| 25/08/2004 | Melbourne Magistrates’ Court | Traffick heroin | 1 | Convicted and Community Based Order (CBO) for 12 months commencing on 25/08/2004 with conditions. Required to attend Carlton Community Corrections Centre by 27/08/2004 by 4.00pm and to: (1) perform 75 hours of unpaid community work over 6 months; (2) undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed by the Regional Manager; (3) be under the supervision of a Community Corrections Officer; and (4) attend for treatment counselling at the Vietnamese Australian Welfare Association as directed. All core Community Based Order conditions to apply. Forfeiture order made by consent. Order all Drugs/Instruments seized be forfeited and destroyed. |
| Fail to answer bail | 1 | Convicted and Community Based Order for 12 months commencing on 25/08/2004 with same conditions. | ||
| 30/01/2006 | Melbourne Magistrates’ Court | Deal property suspected proceed of crime | 1 | Convicted and Community Based Order for 12 months commencing on 30/01/2006 with conditions. Required to attend Carlton Community Corrections Centre by 01/02/2006 by 4.00pm and to perform 150 hours of unpaid community work over 12 months. All core Community Based Order conditions to apply. Order eight mobile phones seized be forfeited and destroyed. |
| Delay police | 1 | Convicted and Community Based Order for 12 months commencing on 30/01/2006 with same conditions. | ||
| 15/06/2006 | Melbourne Magistrates’ Court | Possess cannabis | 1 | Without conviction, fined $50. Forfeiture order made without consent. Order all Drugs/Instruments seized be forfeited and destroyed. |
| 11/09/2006 | Melbourne Magistrates Court | Traffick heroin Possess heroin Possess controlled weapon without excuse | 1 1 1 | Convicted and a Community Based Order for 12 months commencing on 11/09/2006 with conditions. Required to attend Carlton Community Corrections Centre by 13/09/2006 by 4.00pm and to perform 150 hours of unpaid community work over 12 months and to: (1) perform 150 hours of unpaid community work over 12 months; and (2) undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed by the Regional Manager. The Court noted that Mr Tang had successfully undertaken credit bail and has a relationship with a counsellor at the Vietnamese Australian Welfare Association as directed. It intended that this treatment be core sanctioned and ongoing if appropriate. All core Community Based Order conditions to apply. |
| 29/10/2007 | Melbourne Magistrates’ Court | Failure to comply with CBO (breach re 11/09/2006) | 1 | Proven |
| Traffick heroin ) | 1 | ) Original order has been | ||
| Possess heroin ) | 1 | ) confirmed | ||
| Possess controlled weapon without excuse | 1 | Convicted and a Community Based Order for 12 months commencing on 11/09/2006 with conditions as imposed. | ||
| 12/01/2009 | NJC[5] Magistrates – Collingwood | Possess heroin | 1 | Forfeiture order made by consent Order all Drugs/Instruments seized be forfeited and destroyed. |
| 17/06/2009 | NJC Magistrates – Collingwood | Possess cannabis Traffick heroin Possess controlled weapon without excuse | 1 1 1 | On each charge: Forfeiture order made by consent Order all Drugs/Instruments seized be forfeited and destroyed. |
| Deal property suspected proceed of crime | 1 | Forfeiture order made by consent Order all Property seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister. | ||
| Re 12/01/2009 Possess heroin | 1 | Forfeiture order made by consent. Order all Drugs/Instruments seized be forfeited and destroyed. | ||
| 12/08/2009 | NJC Magistrates – Collingwood | Careless driving Fail to stop vehicle after an accident Enter intersection – red traffic light | 2 1 1 | With conviction, fined an aggregate of $1,200.00 |
| Re 17/06/2009 Possess heroin Possess cannabis Traffick heroin Deal property suspected proceed of crime | 1 1 1 1 | Aggregate 6 months imprisonment. Concurrent To be served by way of an Intensive Correction Order requiring Mr Tang to attend the NJC Community Corrections – Collingwood by 14/08/2009 by 4.00pm with conditions. All core conditions under s 20 of the Sentencing Act apply. | ||
| Possess controlled weapon without excuse | 1 | With conviction, fined an aggregate of $1,200.00. | ||
| 11/02/2010 | NJC Magistrates – Collingwood | Failure to comply with ICO Breach re 12/08/2009 Possess heroin Possess cannabis Traffick heroin Deal property suspected proceed of crime | 1 1 | Proven Breach of Intensive Correction Order. Order cancelled. To serve unexpired portion of 151 days. |
| Traffick heroin | 1 | Aggregate 12 months imprisonment. Concurrent. Effective total State term imposed is 1 year. Time held in custody, 31 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with other State sentences imposed this day. Non-parole fixed at 6 months. Forfeiture order made by consent. Order all Drugs/Instruments seized be forfeited and destroyed. | ||
| Possess heroin | 1 | As above | ||
| Deal property suspected proceed of crime | 1 | Order all Property seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister. | ||
| 10/07/2010: By order of the Adult Parole Board dated 9 June 2010, released on parole subject to conditions including that he “not break any law”, “undergo assessment and treatment for alcohol and drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the Centre Manager”.[6] Parole would expire on 10/01/2011. | ||||
| 19/08/2011[7] | Melbourne Magistrates Court | Traffick heroin Possess heroin | 1 1 | Aggregate 12 months imprisonment. Concurrent. Effective total State term imposed is 1 year. Time held in custody, 247 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with any other uncompleted term owed to the State Parole Board. Non-parole fixed at 6 months. Forfeiture order made by consent. Order all Drugs/Instruments seized be forfeited and destroyed. |
| Deal property suspected proceed of crime | 1 | As above except for seizure order. Order all Property seized be forfeited to the Minister and disposed of or otherwise dealt with according to the direction of the Minister. | ||
| 14/09/2011: On being advised that Mr Tang was convicted and sentenced for offences on 19/08/2011, Adult Parole Board cancelled the parole order. | ||||
[5] Neighbourhood Justice Centre
[6] Supplementary G documents at 16
[7] I find that the convictions on these counts relates to a time occurring after 10 July 2010 but on or before 20 December 2010 (Exhibit 1 at 63-64). That later date was the date of his initial reception on a document entitled “Prisoner Holding Indent” and also the date shown on the Local Plan File Notes to the same effect. The Notes state that he was on remand for possessing and trafficking heroin (Exhibit 2 at 103).
Circumstances of offences
A.Possessing controlled weapon without excuse
Mr Tang has been convicted of three offences of carrying a controlled weapon without excuse and was involved in two armed robberies. On the basis of the notes taken when Mr Tang was assessed at the Metropolitan Remand Centre (MRC) on 16 September 2011 and that form part of that assessment (VISAT11).[8] A knife was involved on each occasion. He told prison authorities that, on neither occasion, did he use the knife in a threatening manner at any stage and that he was using it only for purposes connected with drug trafficking. I accept his evidence for it is consistent with the assessment of the correction services officers in assessing his security rating on 22 September 2011.[9]
[8] Victorian Intervention Screening Assessment Tool
[9] Exhibit 2 at 123
Mr Tang said that each of these offences was preceded by visits from his friends. He had known two of them in Vietnam and they were bad people. At first, they only came to the house he shared with his wife for a couple of hours. Then, they wanted to stay the night and then they came to “mess things up at night”. They would bring their friends with them. They used heroin and other drugs at his house and were crazy. His wife was unhappy about this and the two of them started to argue. Mr Tang said that he told his friends and the others to leave but they would return bringing drugs with them. He would use the drugs that they brought and then start doing crazy things. They told him that they were giving him a drug called Valium and that it would help him sleep.
On the night of the offences, they all went out in a car. His friends put petrol into the car at the service station but did not pay for it and then stole cigarettes. Mr Tang said that he had taken the cigarettes and others had taken cigarette lighters and one of them took money. One of his friends was holding the shop assistant at the time. He was told to take the cigarettes, he said, and so took four or five cartons. He had taken Valium before committing the first offence and his head had felt “really empty” and he was not scared of anything. He lost his inhibitions and could not remember anything. Mr Tang said that he had only been told about the plan on the way to the store. After he had taken the drug he did not know anything.
It is Mr Tang’s memory that he was involved in two armed robberies on the same night but the sentencing remarks of Judge Pilgrim of the County Court reveal that they were committed eight days apart: 19 and 27 February 2001.[10]
[10] Exhibit 1 at 72-73
Sentencing remarks are available in relation to these offences of armed robbery. On 27 August 2001, Judge Pilgrim outlined the circumstances of those offences. Mr Tran and four of his friends had gone to a 7-Eleven store in Victoria Street in Melbourne. One, but not Mr Tang, had remained at the door to keep watch whilst:
“… O… I… went behind the counter, removed the kitchen knife from his pants, waved the knife at J… ordering him to get down and to give him, I…, the money. J… opened the cash drawer and I… then pushed J… to the ground and said to him to ‘get down, get down, or I will stab you’.
Tinh Ba Tang, and H… N… then came behind the counter and stole cigarettes from the display counter putting them down their jumpers. They also stole extra change from the drawer plus cartons of cigarettes. All of you then decamped from the store running to your getaway car and returned to Tang’s home in …. Approximately $700 in cash, notes, and coins was [sic] stolen in this escapade, together with $150 worth of cigarettes or thereabouts.”[11]
[11] Exhibit 1 at 72-73
Judge Pilgrim’s summary of the second offence of armed robbery reveals that Mr Tang was involved with two others:
“… at 5.45 a.m. in the morning [they] drove in N…’s care to the Seven 11 at … …. There was a fourth offender with each of you at this time. The vehicle was parked in a nearby street …, and all four of you then walked to the store. One offender remained outside the door of the store to act as a lookout whilst three entered. You, Mr N…, produced a large carving knife and threatened the attendant whilst a co-accused grabbed the attendant and forced him to walk behind the counter. Then, Mr N…, put the knife to the face and neck of the attendant and made him open the drawer.
The attendant… was pushed to the floor so that he would – he was crouched in the corner of the counter. Whilst this was happening two of the co-accused had been helping themselves to cigarettes, phone cards, cigarette lighters, cameras of the disposable kind, photographic film, condoms, batteries and cash from the cash register. All of these items were placed into a shopping bag in plastic shopping bags taken from the store. A short time later all four ran from the store …, got into Mr N…’s car and left the scene.… It is estimated that in respect of the value of the goods and cash stolen at approximately $1100 in terms of value was stolen, the value of the various items of goods amounting to $300.”[12]
[12] Exhibit 1 at 73-74
Judge Pilgrim summarised Mr Tang’s life in Vietnam, his family and work before turning to the period immediately before he committed the offences:
“ After being involved in a motor vehicle accident you ceased working at Fruit Beyond and commenced, if I may say so, using the vernacular ‘hanging about’ on the streets of Footscray in January and February of this year.
It was in these two months that you commenced using heroin with your friends and acquaintances that were already within the drugs scene. Your home came be their base to stay and not surprisingly your wife would not tolerate this behaviour and left. After being arrested and ultimately bailed you have got your act back together, have ceased using, in fact you have produced one record of urine sampling at the instigation of Mr Doyle, indicating to this court that you are now free of drugs.
You have now reconciled with your wife and young daughter and returned to work with Fruit Beyond. You have produced to this court a report from the Western Region Health Centre indicating that you have been attending for counselling, that you report this authority, that your have ceased using, and that it is your intention to learn English to enhance your quality of life here in Australia and perhaps advance yourself.
Mr Tang, you have no prior convictions or indeed court appearances.
You have entered a plea of guilty to these counts on the first opportunity and you are to be given credit for that, and receive a discounted sentence for that plea.
You have been cooperative with the police and in fact have provided a statement to the investigating officers naming the fourth offender in the armed robbery of 27 February 2001. You have indicated to this court that you are prepared to give evidence to assist the Crown in any prosecution that may be brought against the offender if required.… You have indicated your remorse for having committed these offences and you have pursued steps to rehabilitate yourself by seeking out counselling and remaining drug free. In addition, you have returned to work and produced references from Fruit Beyond to support your work ethic.”[13]
[13] Exhibit 1 at 84-85
B.Offences of drug possession and trafficking
Mr Tang said that his first offence of drug trafficking came about in 2004 because he had to buy enough to meet his needs and to cover the cost of his own habit. Therefore, if he had $100, he would buy a block and cut it in half. He would use half and sell the other half for $100. The same type of events led to his convictions in 2009, 2010 and 2011.
Mr Tang could not recall the circumstances of the offences of which he was convicted in June and September 2006. He did recall the knife that was regarded as a controlled weapon. He said that it was a small knife that he had used to tie on a number plate but the police regarded it as a weapon.
When Mr Tang was arrested in December 2010, the police searched the flat he was living in. They found heroin, syringes and money believed to be the proceeds of crime. Those items had belonged to his friend, Mr Tang said, as he is a user as well. When Mr Tang was arrested, he said, his friend planted everything on him.
C. Dealing in property suspected to be the proceeds of crime
He was convicted of the first of these offences in January 2006. Mr Tang admitted that he had the property but that he had the eight mobile phones because he had bought them for $2 or $5. He would fix them up and, if people were travelling to Vietnam, they could take them there to use.
D.Breach of Community Based Order and Parole
Mr Tang said that he travelled to Vietnam between June and August 2007 to try to get away from his friends. When he returned, he found that he was in breach of the Community Based Orders made in September 2006. He was convicted of that in October 2006 but, in Mr Tang’s view, he had done the hours and obtained approval to go to Vietnam. Mr Tang said that he had telephoned the counsellor from Vietnam and she had told him to see her when he returned. When he did return, he could not find her and she no longer worked at the Vietnamese Australian Welfare Association.
Mr Tang said that he complied with his parole for the first 5 and a half months by reporting to his parole officer each week but then he breached it again by not reporting.
Incidents in prison
Mr Tang has been involved in two incidents while in prison. Both related to his smoking when in an unauthorised area. The first was on 23 January 2010 and the second on 30 June 2010.[14] During 2011, he returned four random and one targeted urine analysis tests revealing only prescribed medication.[15]
[14] Exhibit 2 at 89, 117 and 120
[15] Exhibit 1 at 66
Drug use
Precisely when Mr Tang started to use heroin is not clear. Local Plan File Notes dated 20 December 2010 record that he was a daily user.[16] He is recorded in VISAT11[17] as stating that, except during the periods on which he has been on remand, in prison or in detention, he had used heroin daily for the previous five years.[18] As the date of VISAT11 was 16 September 2011, that would mean that his habit started in 2005 or 2006. His habit cost him in the order of $100 each day. The same is repeated in a Tier 1 Report completed on the same day, 16 September 2011, but that also notes that he was smoking heroin.[19] Mr Tang’s oral evidence was to the same effect and he states that he has never injected it.
[16] Exhibit 2 at 103
[17] Exhibit 2 at 75
[18] Exhibit 2 at 75
[19] Exhibit 2 at 87 and 90
Inconsistency in the date of his starting to take drugs becomes apparent when regard is had to an earlier VISAT completed on 10 March 2010 (VISAT10). In that document, Mr Tang is recorded as saying that he had “… first started using heroin in 2002 after divorcing from his wife.”[20]
[20] Exhibit 2 at 167
Mr Tang said in giving oral evidence that he started taking drugs because he met friends, who gave him some to use. That was in January or February 2001. His friends trapped him into taking them and he had to traffick in order to pay for the drugs. He broke up with his family as a result. His pattern was to use, go on a methadone programme, use and return to the programme. His habit cost him nothing as he paid for it from the proceeds of his trafficking.
In his oral evidence, Mr Tang said that, other than methadone, he had not used drugs since 2009 or 2010. He does not use drugs in prison but, in 2009, he had been released from prison and had met his friends. They would give him heroin because, he said, they knew that he did not have any and in that way they “started to hook …[him] in”.
Mr Tang’s understanding of any impact of his offending on the community
After reviewing Mr Tang’s attitudes and beliefs, VISAT10 notes that:
“Mr Tang accepts his imprisonment but appears to fail to understand the seriousness of trafficking drugs and the impact it has on the community.”[21]
[21] Exhibit 2 at 175
When asked in cross-examination about the harm caused by his trafficking heroin, Mr Tang replied that his actions caused damage to himself and to other people. There is no benefit in it. If he takes medication, it means that he does not think about heroin anymore. Without medication, he does think about it. When asked by Mr Brown to describe consequences for other people, Mr Tang replied that, if he causes harm to other people, this is a consequence that comes back to him. He can cause harm to families and cause them to break up and they lose their house but he has not caused harm to other people. He had caused danger only to their health and not to their money.
Rehabilitation programmes in the community and in prison
Mr Tang was asked by Mr Brown about the treatment he had received for his drug addiction. He said that, as a result of a Community Based Order made in 2004 after his second set of offences, he had seen a psychologist and many different people. The psychologist had told him to try to avoid heroin and alcohol and had also asked him lots of questions about his past. He also saw two counsellors at the Vietnamese Australian Welfare Association. They told him how to start a new life and to withdraw. He was so stressed and had to put aside the thought of killing himself because he had to stand up again for his daughter. During 2004-2005, he used heroin only once a month or once every few weeks.
Mr Tang was given further Community Based Orders in 2006 and again he was required to attend the Vietnamese Australian Welfare Association. He understood its counsellors to be telling him to start a new life. If he did not, he would do something even more terrible than he had done.
VCAT10 records Mr Tang as believing that he needed to address his heroin addiction.
At a meeting on 8 July 2011 while Mr Tang was located at the MRC for review and assessment of him, the review panel noted that:
“Prisoner Tang stated that he is aware of offending behaviour programs but feels that he does not need them at this time. Prisoner is aware of offender services but feels that he does not need them at this time.”[22]
[22] Exhibit 2 at 190
In his oral evidence, Mr Tang said that he had asked about programmes to help him with his drug addiction but had been told that none were available. A Review of Local Plan dated 29 June 2011 records the officer completing the review as noting of Mr Tan:
“Not interested in work, programs, education. Keeps to himself most of the time.”[23]
Mr Tang could not recall being disinterested in participating in programmes. He attended all programmes, he said, and repeated that he had asked for those relating to alcohol and drugs and been refused.
[23] Exhibit 2 at 127
A note dated 29 June 2011 in his Local Plan File Notes states that “… Tang doesn’t work and shows no interest. …”.[24] The next note dated 16 July 2011 records that he is to start work in the kitchen on the following day but, a note dated 25 July 2011 records that “… he is no longer working in the kitchen. …”.[25]
[24] Exhibit 2 at 105
[25] Exhibit 2 at 105
Assessment of Mr Tang’s risk of re-offending by Victorian corrections authorities
In March 2010, the case notes on VISAT10 assessed Mr Tang:
“… at a low level of risk of general re-offending. His major risk factor is his heroin use as well as his involvement with other drug users in the community. Given the above, it is recommended that Mr Tang be referred for drug treatment programs as well as participate in an English course and be linked with a Vietnamese worker.”[26]
[26] Exhibit 2 at 177
Educational and vocational programmes in prison
VISAT10 recorded Mr Tang’s statement that he believed that he needed to improve his English language skills so that he could find a job. The Case Notes that follow observed that Mr Tang:
“… communicated with some difficulty in English and it is therefore strongly recommended that he participate in an English course whilst in prison, which he expressed willingness to do. …”[27]
This was followed by a note dated 24 March 2010 of his acceptance at the Kangan TAFE and that he was then “… participating in computers and English and is enrolling in cooking and laundry to improve his life skills. …”. Mr Tang was approved for full-time education.[28] On 5 April 2010, it was noted that “… Prisoner Tang attends programmes each day as full time education.”[29] After he was transferred to the Fulham Correctional Centre on 3 June 2010, things changed. He was not employed at the time and he did not have a good understanding of English but he did state that he would like to do some education. The note dated 9 June 2010, however, raises doubts as to whether Mr Tang’s wish was ever fulfilled for the officer writes “… I could not find out info regarding how long English course would be.”[30]
[27] Exhibit 2 at 170
[28] Exhibit 2 at 111
[29] Exhibit 2 at 140
[30] Exhibit 2 at 141
These courses were noted in VISAT11 as was the fact that he was undertaking them again. The notes express concern that Mr Tang’s limited English might affect his future employment “… although he stated that so far it had not.”[31] While at MRC, Mr Tang completed one day courses in each of Occupational Health and Safety, Kitchen Operations, First Aid and Initial General Education for Adults.[32] He also learned skills in sewing, overlocking and cutting textiles.
[31] Exhibit 2 at 91
[32] Exhihit 2 at 129
When asked what he had learned at the courses he had undertaken while in prison, Mr Tang replied that he had not understood them as the instructors had spoken in English very quickly. He had talked with his fellow Vietnamese prisoners about the programmes. From them he had learned that he had to start a new life, live for the children and to have goals to restart his life. He needs to do that because otherwise he will have to hide from his daughter as she will be ashamed of her father and his daughter’s boyfriends will look down on her father.
Focusing first on Mr Tang’s English, I note that his skills have been variously described in the reports of the correctional authorities. I will summarise them and his stated intentions in the following table:
| Date | Assessment | Remedial action proposed |
| 05/03/2010 | “Does not speak or read english to well, but can communicate.”[33] | |
| 10/03/2010 | “Can communicate with difficulty, translator not required.” “Lacks basic skills (language, literacy)”[34] | “Strongly recommended that he participate in an English course whilst in prison, which he expressed willingness to do.”[35] |
| 11/03/2010 | “Willing to undertake progs (Vietnamese) and would like to study English as a second language.”[36] | |
| 03/06/2010 | “No English translation needed.”[37] | |
| 20/12/2010 | “Poor english however understands.”[38] | |
| 27/01/2011 | “Has limited English but I think passable.”[39] | |
| 03/03/2011 | “He speaks little english.”[40] | “He is interested in participating in English classes.”[41] |
| 05/04/2011 | “Prisoner Tang stated that he is aware of clinical services but due to a language barrier is unable to attend any programs.”[42] | |
| 08/01/2012 | “I also informed him to apply for the English program as it is needed and he understands little English.”[43] | |
| 12/02/2012 | “He speaks little English and even with the help of an interpreter he finds it difficult to answer questions in regard to his housing upon release.”[44] | |
| 16/12/2011 | “Very limited English.” | “Would like to learn English.”[45] |
| 08/01/2012 | “Apply to commence English course + the TAP program.”[46] |
[33] Exhibit 2 at 153
[34] Exhibit 2 at 170
[35] Exhibit 2 at 170
[36] Exhibit 2 at 152
[37] Exhibit 2 at 152
[38] Exhibit 2 at 103
[39] Exhibit 2 at 103
[40] Exhibit 2 at 103
[41] Exhibit 2 at 104
[42] Exhibit 2 at 188
[43] Exhibit 2 at 107
[44] Exhibit 2 at 107
[45] Exhibit 2 at 122
[46] Exhibit 2 at 110
Work in prison
In cross-examination, Mr Tang said that he had not had the opportunity to work as he had been studying for four days each week. In so far as his being approved for study courses, Mr Tang’s evidence is consistent with the records kept by officers of the correctional services. The Sentence Management Panel’s notes dated 22 September 2011 reported that Mr Tang was keen to work while in prison[47] but the earlier note dated 2 April 2011 stated that he had “…completed OH&S but states not interested in working. States uninterested in clinical/offender services courses.”[48] His disinterest in working was recorded on 3 March 2011 as well.[49]
[47] Exhibit 2 at 120
[48] Exhibit 2 at 104
[49] Exhibit 2 at 104
Mr Tang’s contact with his family and friends in prison
On 11 March 2010, Mr Tang told the interviewing officer on the day of his arrival at Port Phillip Prison that he expected visits from his wife.[50]
[50] Exhibit 2 at 152
On 9 June 2010, the notes in the Local Plan File Notes record that Mr Tang had money sent in to enable him to have telephone contact with his family on a regular basis. That is consistent with an earlier note dated 4 June 2010 that he was expecting to receive visitors while in prison. It was also noted that Mr Tang wrote letters.[51]
[51] Exhibit 2 at 141
On 16 January 2011, the Local Plan File Notes recorded that Mr Tang did not seem to have any contact with his family.[52] By 2 April 2011, it is said that he “… continues not to receive visits but maintains regular phone contact with family & friends. …”.[53] The Review and Assessment Report dated 5 April 2011 states that Mr Tang was “… currently not having regular visits with his family. Prisoner Tang does have regular phone contact with his wife. …”.[54] On 29 June 2011, the situation was much the same although the recipient of two telephone calls each week is not identified.[55] On 25 July 2011, it was noted that “… He is not receiving personal visits and is not concerned by this. …”.[56] A note dated 23 September 2011 states that Mr Tang was “… occasionally contacting family via the phone. …”[57] but the notes of the Sentence Management Panel discussion with Mr Tang at the MRC on 22 September 2011 record that:
“Family Support: Thinh Ba indicates that he will not be receiving visits as he is estranged from his family.”[58]
Notes of a Review and Assessment Panel meeting with Mr Tang at Fulham Correctional Centre on 16 December 2011 state that “He is expecting to receive visits at this location from family and friends.”[59]
[52] Exhibit 2 at 103
[53] Exhibit 2 at 104
[54] Exhibit 2 at 188
[55] Exhibit 2 at 105
[56] Exhibit 2 at 105
[57] Exhibit 2 at 106
[58] Exhibit 2 at 120
[59] Exhibit 2 at 122
HD: her custody, care and future
The notes in VISAT11 record that:
“Mr Tang resided with his daughter and a friend in Northcote for a period of 18 months prior to his reception into custody. He intends returning to his former accommodation upon his release from gaol. He indicated no issues with returning to his property. …”[60]
“Mr Tang reported he enjoyed a positive and pro-social support of his family, who from time to time had offered to assist in providing accommodation and discouraged his drug use and offending behaviour. He explained his family is supportive of him throughout his term of imprisonment. He has a 12-year old daughter who was residing with him prior to his arrest. She is currently living with his ex-wives [sic] mother and reported that upon his release she would continue to live with him.…”[61]
[60] Exhibit 2 at 77
[61] Exhibit 2 at 80
The notes taken six months earlier in VISAT10 record that, since August 2009, Mr Tang had been the sole carer of his 11 year old daughter. He was in receipt of a single father benefit as a result.[62] At the time, his daughter was holidaying in Vietnam with her maternal grandmother but, on her return would live with his ex-wife.
[62] Exhibit 2 at 171
In completing the Personal Details Form for the Department of Immigration and Citizenship (Department) on 16 January 2012, Mr Tang has stated that he lived with his daughter but, while he was in prison, he had telephone contact with her once or twice a week.[63]
[63] Exhibit 1 at 40
As I understand Mr Tang’s statutory declaration, lived with her parents until she was approximately one year of age. That would have been in approximately 2000. When they divorced, or perhaps separated, Mr Tang offered custody of HD to his wife. His wife and daughter went to live with his wife’s mother. On the basis of Mr Tang’s evidence and that of HD and Mrs Tran, I find that he visited her once every fortnight and, sometimes, once every week during the years from 2001 to 2004 when he and his wife divorced. Later, he visited her once every two or three weeks. His visits would last three or four hours but, if he had more time, he would spend more time with her. As she grew up, he would take her out to the shopping centre, for something to eat and simply to spend time together.
Mr Tang said that HD did not visit him while he was in prison because, fearing it would have a bad effect on her, they tried to hide his imprisonment from her. Only his former wife visited him. He would telephone his daughter at home every week or fortnight when he was first imprisoned. Later, he had difficulties because he was not allowed to call a mobile telephone but he did call when the rules were changed. He wrote letters to his daughter with the last being a Christmas card in 2011. Mr Tang’s evidence is consistent with the notes kept by the prison authorities.
In August 2009, Mr Tang said that he “… was offered to have the custody of … [HD] and I asked her grandmother to continue to look after her because I was involved in legal problems.”[64] Mr Tang’s statement is confirmed by the evidence of Mrs Thi Vinh Tran, HD’s grandmother, and I find that this is indeed what happened. I find that HD has lived with her maternal grandmother since she was approximately one year of age and has done so continuously since then. Mr Tang’s statements to correctional authorities and to the Department were inaccurate for whatever reason.
[64] Exhibit B at [5]
On the basis of Mrs Tran’s statutory declaration[65] and her oral evidence, I find that HD’s mother did not live with them permanently or even for any extended period at all. In effect, Mrs Tran has been HD’s guardian from that time. I also find that Mr Tang has visited HD regularly and that he has given her some financial and emotional support.
[65] Exhibit D
On the basis of the evidence of Mrs Tran and HD, I also find that HD’s mother asked HD to live with her once more when she remarried in 2008. Mrs Tran agreed that she should do so as she, Mrs Tran, was getting older and HD’s mother was younger. Mrs Tran has met HD’s stepfather and sometimes he visits her with her daughter. He works in a restaurant. In the school holidays in 2008, HD moved to the house of her mother and stepfather in Collingwood. She stayed for only two weeks as she found the adjustment from the outer city suburb in which she lives (OS), the separation from her friends and cousins was too great. In addition, she did not warm to her stepfather. When she told her grandmother that she did not want to stay with her mother, HD was allowed to return to her grandmother.
In his statutory declaration, Mr Tang asked me to take the following facts and factors into account:
“12. THAT: Presently my daughter … [HD] is living with her grandmother Ms Thi Vinh TRAN, a 78-year-old elderly … who finds it difficult to look after herself due to her poor health and old age.
13.THAT: If I leave Australia my daughter will be looked after by no one once her grandmother is unable to care for her. No doubt, if this is the case my daughter’s schooling will be affected negatively.
14.THAT: My daughter has contacted and come to visit me a couple of times at Maribrynong Detention Centre and we had the chance to talk a lot about our relationship and her future. I have promised my daughter I would look after her well and become a good citizen of Australia.
15.THAT: Australia has opened arms to embrace me. I feel ashamed to have done wrong things to Australia and my family, particularly my daughter … [HD]. Please give me the opportunity to fulfill my wishes.”[66]
[66] Exhibit B
In his oral evidence, Mr Tang said that the gap between HD and her grandmother was too big and they cannot get along together. As a father, he can give her love, encourage her to study and go to university. He could teach her about her Vietnamese background and about his bade experiences. He has not spoken with her about his past in any deep way yet and he will do so when she is older.
Mrs Tran has said in her statement that her health is very poor and that, at the age of 78 years, she is not able to look after HD. During the hearing, she showed me some correspondence she had received regarding her health including medical appointments and test results. Certainly she has some ongoing health issues but, on the basis of that correspondence, I find that Mrs Tran is being treated for them. The correspondence did not suggest anything other than that the conditions were being treated and stable with no adverse health consequences forecast.
Mrs Tran was asked whether she had known of Mr Tang’s problems with the law. She replied that she had known none of them until he had been to court and he had asked her and her second son to sponsor him so that he could stay with them. He lived with them for a few weeks and all that she knew was that he was involved with heroin. Mrs Tran said that she told him that he should give it up and then he left. After that, she saw him once every one or two months when he visited his daughter. His behaviour was quite normal and he cares for his daughter. He told her that he had given up heroin and that he was working somewhere. Mrs Tran was aware that Mr Tang had been in prison twice in the last two years but said that she did not really care about that. All that she knew was that she has to look after his daughter.
When asked how she felt about Mr Tang’s looking after HD, Mrs Tran said that she can still look after her but, one day when she dies, HD will have a father who can look after her. He regrets what he has done. When asked whether she intends looking after HD, she replied that she feels sorry for both of them and their relationship. She hopes that he can remain in Australia so that, if she dies, someone can look after her. As far as Mr Tang’s seeing HD is concerned, she will still allow him to visit her as the father/daughter relationship is still there and she cannot cut it off. She has set rules around his visits and they are directed to ensuring that HD’s education is not disrupted. Mrs Tran wants to ensure that HD grows up to be a “good person” and not like her parents. Mr Tang has told her that he would give up heroin. If he does not, she said, then “kick him out”. He will change his ways now because he is now aware that he will be sent back to Vietnam if he does not. That he will regret. Furthermore, HD is now growing up and he promised he would change.
Mrs Tran does not consider it a reasonable arrangement to suggest that HD could be looked after by her daughter were she to become ill or die. She had no reason to offer other than that, at the moment, HD tells her that, wherever her grandmother goes, she will go and that she does not like her stepfather.
HD is in Grade 7 at a school quite close to her home. One of her two cousins, who live nearby, is in the same class at the same school and she gets along well with him. She enjoys school. Her favourite subjects are English and Mathematics and she also likes to play sport including basketball, softball and football. Her favourite sport is basketball and she practices that in the garden at home. HD spends an hour or so on her homework each night as that is what she wants to do; it is not imposed on her by her grandmother.
HD said that she did not like living with her mother and stepfather. It was different from living with her grandmother, she did not like the fact that her mother had married another man and she did not like him. The routines of the house were not those that she was used to, there was no internet access and she could not do anything. The way her step father “does stuff and says things are not to my liking”, she said. He is messy and she is tidy. Her mother and her stepfather argued and that made her feel frustrated and sad, she said. She cares for her mother and she gets upset when her mother gets upset during the arguments. Her friends and cousins live in OS and that was a long way from the inner city suburb where her mother lives. HD said that she did not know what arrangements were being made about her schooling. That was a matter between her grandmother and her parents. Her preference was to stay living with people she knew and she has told her grandmother that.
HD said that she still sees her mother four, five or six times a month. They talk and watch music shows with her grandmother. They talk and she listens at her grandmother’s house. Sometimes her stepfather visits as well. She does not mind if he does.
The important things that her father does for her, HD said, are that his presence means that she does not feel left out when her friends talk about their father and what their fathers do with them or for them. She only has her father and she cannot replace him. It is hard if he has to go back to Vietnam and she will not be able to see him regularly as she has been doing. That is something that comes to every child.
Post release plans
Mr Tang told the Sentence Management Panel on 22 September 2011 that he would return to live with a friend in Northcote.[67] This was similar to the plan recorded by that Panel on 11 March 2010. It recorded that Mr Tang would return to that accommodation and would resume employment in a restaurant.[68] His pre-release plans given to an officer on 12 February 2012 were to the same effect. He would stay with friends at Northcote and be supported by them socially and by Centrelink financially.[69]
[67] Exhibit 2 at 120
[68] Exhibit 2 at 117
[69] Exhibit 2 at 115
In cross-examination, Mr Tang said that the friends he would stay with are those he lived with for a few months before he went to prison. He described them as “normal friends” whom he had helped and who would help him. They are friends of his wife and he has known them for seven or eight years. His wife has known them for over 20 years. He would be able to use one bedroom of a three bedroom house. If he cannot stay with those friends, he will find accommodation in OS where he also has a couple of friends who still work at the factory. He would ask them to see if they could get him a job and he would work and live in OS near his daughter. Ultimately, he wanted to find a place large enough to accommodate HD, her grandmother and himself. His daughter loves her grandmother very much and they need to be together.
In his statement to the Tribunal, Mr Tang said:
“8. THAT: I admit I had been wrong to be involved in heroin traffic and possess of cannabis as well as other associates crimes.
9. THAT: During my stays in prison I have had plenty of time to think over and over of what he had done and particularly the future of my daughter.
10.THAT: I am determined I will do the right things by not committing to any crimes. In particular I will keep away from the bad-friend group who had made me become the crime.”[70]
[70] Exhibit B
In answer to my question as to how he would change what seems to be a pattern of offending, Mr Tang replied that he would try to avoid his old friends. He would live in OS and so nowhere close to the city. In the past, he has tried to avoid his friends but has still met them. Things would be different if he were to meet them now as, in the past, he has not thought clearly but now his mind is much clearer. He has to ignore them so that his daughter looks at him with pride. His former wife can help him even though they do not live together and his cousin who lives in OS can help, he said. If he does not start again, he said, his life is finished. He has to be strong; everyone makes mistakes.
This time, Mr Tang continued, his situation is different from any of the other occasions on which he has been released from detention. If he does not change, he will not be able to see HD again. He has to be strong, he repeated. How he deals with his bad friends in the future will depend upon his thinking. If he does not want to do what they want, they cannot force him. Last time, he was not so clear. This time, even with a gun to his head, he said, he would not do it. When reminded that there have been many last chances, Mr Tang said that, this time, was the end of the road. There were no more chances.
Mr Tang said that his relationship with his brothers is not very close. He telephones his mother sometimes but not his brothers. Should he be required to return to Vietnam, he is concerned about where he will live and about how he will adapt to life there. He is concerned about his brothers as they have not got along very well since the dispute over the family land. That had resulted in none of the brothers gaining a share of the land and their mother’s retaining it.
Medical treatment for heroin addiction
Mr Tang said that he was having treatment for his heroin addiction. He has undertaken a methadone programme and is currently taking a different opiate replacement therapy. [71]The Local Plan File Notes dated 2 April 2011 show that he was taking Buprenorphine.[72] On 23 September 2011, they record that Mr Tang has lowered his Buprenorphine with a view to no longer taking it.[73] On the basis of his evidence at the hearing, I find that Mr Tang continues to take it.
[71] Exhibit 2 at 106
[72] Exhibit 2 at 104
[73] Exhibit 2 at 106
Notice of decision not to cancel visa
On 19 July 2010, the Minister wrote to Mr Tang to advise him that he had decided not to cancel his visa. The letter contained the following statement:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[74]
Attached to the letter was a form that Mr Tang was intended to sign acknowledging that he had received the letter advising him of the decision and stating that he understood that consideration might be given to cancelling his visa in the future if the Department received further information.[75] The document is unsigned.
[74] Exhibit 1 at 95
[75] Exhibit 1 at 97
MINISTER’S DIRECTION
Section 499(1) of the Migration Act provides that, that the Minister may give directions to a person having functions or powers under the Migration Act if the directions are about the performance of those functions or exercise of those powers. The Minister is not empowered to give directions inconsistent with the Migration Act or with Regulations made under it and a person must comply with those directions.[76]
[76] Migration Act, s 499(2A)
The Minister’s Direction: outline of Direction
The Minister issued directions under s 499 on 3 June 2009 in relation to visa refusal and cancellation under s 501 of the Migration Act. It is Direction [no. 41] – Visa refusal and cancellation under s 501 (Direction) and commenced on 15 June 2001. In essence, it sets out the government’s policy but, although the Tribunal must comply with it, the Direction does not require a particular outcome in a particular case. What it requires is that the Tribunal consider matters set out in the Direction and follow its directions in considering the particular circumstances of a visa holder and coming to a decision.
Paragraph 5.1 of the Direction states that:
“(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
Harm to the Australian community, the risk of the occurrence of that harm and an assessment of what is and is not an unacceptable risk of that harm’s occurring are seen as fundamental in paragraph 5.1. That this is so is clear from paragraphs 5.2(2) and (4):
“(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a)the nature of any harm that the person concerned may cause to the Australian community: and
(b)the risk of that harm occurring.
(3)…
(4)In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.”
Factors relating to matters referred to in [5.2(4)] are set out in [5.2(3)] and regard must be had to them as well as any relevant international law obligations. Recognition is given in that paragraph, though, to the need to consider the exercise of the power under s 501 in the context of a wide range of factors among which these particular factors are considered.
The Direction is divided into two parts. The first deals with the application of the character test. There is no question that Mr Tang does not pass the character test. I will not spend further time on it other than to say that Parliament has decided that a person who has a substantial criminal record of the sort held by
Mr Tang is a person whose visa may be cancelled. The second part of the Direction assumes that the visa holder has not passed the character test. It sets out directions on the primary and other considerations relevant in determining whether it is appropriate in the circumstances of the particular case to exercise the discretion to, in this case, cancel a visa. I will also consider what those considerations entail.
The Minister’s Direction: taking into account the various considerations
Under the Direction, decision-makers must take into account primary considerations in every case. Other considerations, which are identified in [11], should be taken into account where relevant.[77] I will summarise the primary and other considerations when I take each into account. In the case of Re Basile and Minister for Immigration and Citizenship,[78] I decided that, as the Direction is a Legislative Instrument for the purposes of the Legislative Instruments Act 2003 (LI Act)[79] and there is no contrary intention in the Direction or in the Migration Act under which it is made, I must construe it as if it were an Act of Parliament.[80]
[77] Direction at [9(1)]
[78] [2010] AATA 556 at [113]-[118]
[79] The Direction is an instrument in writing, that is of a legislative character, has been made by the Minister in accordance with a power given by Parliament in s 499 of the Migration Act: LI Act, s 5(1). Whether a visa is regarded as a privilege or a right, the Direction has the indirect effect of affecting it because decisions regarding its cancellation must be made in accordance with it: LI Act, s 5(2)(b).
[80] LI Act, s 13(1)(a)
I considered what was required of me when the Direction states that I am to “take into account” the primary and other considerations. For reasons I adopt in this case, I concluded in that what is required is not an arithmetical approach but rather one of thinking about each consideration as part of a process of coming to a conclusion about another. In doing so, considerations that are not described in the Direction as the primary considerations “… generally, … should be given less weight than that given to primary considerations.” That is the direction in [11(2)] of the Direction but “generally” does not mean “always” and “should” does not mean “must”. As Gray J said in Milne v Minister for Immigration and Citizenship[81] of the Minister’s earlier Direction 21, which was to the similar effect in this regard:
“… Again, in cl 2.17, in referring to the ‘OTHER CONSIDERATIONS’ (ie. the considerations that are not primary considerations), the decision-maker is instructed that the other considerations would ‘generally … be given less individual weight to the other considerations than to the primary considerations. A decision-maker who acted on the view that he or she was bound to give less weight to the other considerations than the primary considerations would be in error. The adoption of such a principle would lead to the result that the decision would always be made according to the primary considerations, because the other considerations would never be allowed to outweigh the effect of the primary considerations. … The balancing process is not intended to be mechanical. It is certainly not intended always to produce the result dictated by the preponderance of the primary considerations. If that were the case, it would be pointless to instruct the decision-maker to have regard to the other considerations. …”[82]
CONSIDERATION
The primary considerations
[81] [2010] FCA 495; (2010) 52 AAR 1
[82] [2010] FCA 495; (2010) 52 AAR 1 at [45]; 14-15 and approved by Tracy J in Schuster-McFayden v Minister for Immigration and Citizenship [2011] FCA 1303 at [27]-[31]
A.Protection of the Australian community
Consideration must be given to “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence.”[83] Apart from the government’s objectives, to which I have referred, the Minister requires consideration to be given to the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated in assessing the risk of harm to the Australian community of the person’s continued stay in Australia. Paragraph 10.1.1 then goes on to expand upon the Minister’s examples of crimes that are considered serious. Among them are robbery and the possession or trafficking of trafficable or commercial quantities of illicit drugs.[84] The Note to [10.1.1(2)] makes it clear that robbery includes armed robbery and that possession or trafficking of drugs does not include offences related to personal use of illicit drugs less than a trafficable quantity. Mr Tang, I find, used heroin but he possessed a greater amount than was required for his personal use. He was convicted of trafficking and so cannot take advantage of the ameliorating note. In so far as the use of a knife in the armed robbery and subsequent offences was concerned, I accept Mr Tang’s evidence that he was in possession of it but possessed it only for the purposes of dealing with the heroin; he did not use it to threaten another person.
[83] Direction [10(1)(a)]
[84] Direction at [10.1.1(2)(e) and (f)]
I have no evidence as to the manner in which Vietnam would deal with similar offences and so need have no regard to [10.1.1(4)(d)] of the Direction. Paragraph 10.1.1(3) is relevant. It requires me to look to the sentences imposed as indicative of the seriousness of Mr Tang’s conduct against the community. Due regard must be had to Mr Tang’s criminal record including the number and nature of offences, the period between offences and the time elapsed since the most recent offence.
For the most part, I have only the date of the convictions and not the date of the offences. They may be quite some distance apart and would be useful information to have to see a proper view of offending behaviour. I must rely on the date of convictions in this case and have assumed that they bear some relation to the date on which the offences were committed. Making this assumption, I find that Mr Tang committed his first two offences – of armed robbery – at the end of 2000 or beginning of 2001 and so some eighteen months after he arrived in Australia. I find that it was some three years before Mr Tang was convicted of his second offence of trafficking heroin and failing to answer bail in 2004. There was then only an eighteen month period before his third set of convictions on 30 January 2006 and five or so months to the fourth. The fifth was three months later on 11 September 2006. He was not convicted again until a little over a year later on 29 October 2007. Two of the offences were possession of heroin and trafficking heroin and one the possession of a controlled weapon. The third was a breach of his CBO. I accept that he was in Vietnam for some two and a half months of the period of his CBO. That may explain why he did not reoffend in that period but his absence was itself a breach of his CBO. Given the inevitable lag between the date on which an offence is committed and a person is convicted, I also find that Mr Tang must have committed his offences of possession and trafficking at some time in the year between his last convictions and the imposition of the CBO on 11 September 2006 and his being convicted on 29 October 2007. There was another gap of fourteen or fifteen months until his next conviction for possessing heroin on 17 January 2009 but then only a five month and then a two month gap to following offences. Even though on an intensive corrections order, Mr Tang was in breach of that order and convicted of possession and trafficking and related offences six months later. When released on parole on 10 July 2010, he was convicted of similar offences on 19 August 2011.
Paragraph 10.1.1(4) of the Direction requires me to consider any relevant information in respect of Mr Tang. The paragraph specifies independent and authoritative sources in respect of Mr Tang but does not limit the information to those sources. I have only the sentencing remarks of Judge Pilgrim. They relate to the first two offences and his Honour accepted that Mr Tang played a role but only a minor role. On the basis of what he said, I find that Judge Pilgrim regarded Mr Tang’s behaviour at the time as an aberration and that, having reconciled with his wife, given up drugs and attended counselling, it would remain an aberration.
Mr Tang himself, I find, has attributed his behaviour to his friends. The friends of his friends were “bad people” and had led him astray. I also find, the Mr Tang has been unable to decline their offers of heroin. Since the armed robberies, this has led him on the path of committing offences that might, if they were isolated offences, be regarded as relatively minor in the context of these things. Viewed as a pattern, I find that the conduct in which Mr Tang has been engaging is of special concern to the welfare and safety of the Australian community. It has been a pattern that has been repeated with increasing regularity.
That brings me to the risk that the conduct may be repeated. Paragraph 10.1.2 requires consideration of Mr Tang’s previous general conduct and total criminal history. Three factors are set out in [10.1.2(2)] as factors that are to be considered as particularly relevant to the assessment:
“(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”
The pattern of Mr Tang’s behaviour has been one of regular offending with generally decreasing periods between offences. Certainly, the amount of heroin found in his possession when arrested has not placed him among those who deal with large amounts. What it does do, is place him among those who are users who must deal to support their habit. That can put a person into a dilemma when personal addiction takes them on a course that assists others to follow or to continue to take the same course. Not so Mr Tang. I find that he does not understand the danger to the community that follows from trafficking in drugs. Certainly, as a small time trafficker, all of the difficulties faced by the community from drug trafficking and drug use cannot be attributed to him. What is of concern to me is that Mr Tang did not seem to understand the impact of his behaviour on others. He answered in terms of himself but, when pressed, turned to other people. He saw harm to other people in terms of their health and their financial situation. He had not caused any one to lose money. Their health had suffered but, as they had not lost money, he had not caused harm to other people. Mr Tang’s seeing the issues relating to potential harm from drug use and drug trafficking in such narrow terms causes me concern. If a person does not understand why certain behaviour is regarded as contrary to the law, it may be harder to avoid that conduct.
Unfortunately, I do not have any evidence from a professional person such as a psychiatrist or psychologist. What I do have are the notes of the correctional services. They show a pattern of Mr Tang’s stating that he has an interest in undertaking activities such as work and study but, at other times, stating that he does not have any interest in working and studying. I do accept that he was studying in prison on four days each week in April 2010 but that this did not continue. What he was studying does not appear in the notes. I am satisfied that the reference is not to the Occupational Health and Safety, Kitchen Operations, First aid and Initial General Education for Adults courses he later undertook for a day in each of March, May, June and August of 2011. It may be that courses could not be arranged and, in relation to an English language course, there is certainly a note dated 9 June 2010 stating information could not be obtained about the length of an English course.
Whatever be the rights and wrongs about rehabilitation and study programmes available in prison, the fact remains that Mr Tang’s English is very poor. This largely confines his social interaction to those with whom he can communicate. While he was in prison, for example, the corrections services officers noted that “He interacts well with his fellow Vietnamese prisoners.”,[85] “Tang seems to relate well with other Vietnamese prisoners.”[86] and that he “mixes with fellow Vietnamese prisoners.”[87] That he did so is understandable even if regard is confined solely to the ability to communicate easily.
[85] Exhibit 2 at 106 (30 August 2011)
[86] Exhibit 2 at 104 (13 March 2011)
[87] Exhibit 2 at 103
The restrictions that his poor English skills impose upon him extend to his life outside prison. The friends he associated with when he first came to Australia were those people he already knew in Vietnam. They brought other friends with them. His circle has become very confined to those whom he already knows. This is apparent in his nominating to return to the Northcote home of his friend upon his release each time he is released from prison. This is a friend whom he knows is a drug user. He has said that he will be strong in the future and resist a return to his former use and trafficking of heroin and associated offending patterns. It is difficult to see how he will be able to do that when his English skills have, on his own evidence, prevented him from understanding the programmes he has attended in prison.
I have no evidence that Mr Tang has attended any rehabilitation programmes outside prison. All that he has gained from his attendance at the Vietnamese Australian Welfare Association and any programmes he might have attended is that he had to start a new life, live for the children and to have goals to restart his life. He did not learn any strategies that he could implement in order to achieve the outcome he desired. His history has proved that he has been incapable of achieving those strategies for, in more recent years, he has breached a CBO, an intensive corrections order and his parole.
Breaches do not bode well for future compliance and nor does Mr Tang’s limited understanding of the damage that his actions potentially cause to the community. He sees the consequences of his actions in terms of the consequences to him and, in so far as he takes a broader view, he does not see that his actions have caused any harm to the community.
Mr Tang has plans to avoid reoffending by living in OS either with or near his daughter. I accept that he loves his daughter dearly but his love for her was not sufficient to stop him from reoffending in the past. He has lived with his daughter and her grandmother for a few weeks in earlier times but he did not remain with them for very long before moving away and resuming his former life. Given that he has not learned the strategies and tools that would help him to start a new life, I have little confidence that he would be able even though I accept that he would sincerely mean to do so.
B.The length of time that Mr Tang has been resident in Australia
Paragraph 10.3(1) is another primary consideration to which I must have regard. It reads:
“Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.”
Mr Tang had been in Australia for eighteen months or so when he first offended. He has worked in Australia for a few years and his daughter and his daughter’s grandmother live in Australia. So too does his former wife with whom he maintains contact. He has two aunts and cousins and nieces and nephews in Australia but did not suggest that they were part of his life. Only his daughter and her grandmother are his ties to Australia.
C.International obligations
Paragraph 10.4(1) states that:
“Reflecting Australia’s obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.”
Paragraph 10.4.1 expands upon the consideration. In so far as it is relevant, it states:
“(1) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.
(2)-(3)…
(4)Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. …
(5)In considering the best interests of the child, the following factors are to be considered
(a)the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;
(b)the duration of the relationship, including the number and length of separations and reason/s for the separation;
(c)the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday;
(d)the child’s age;
(e)whether the child is an Australian citizen, permanent resident or New Zealand resident;
(f)the likely effect that any separation from the person would have on the child;
(g)the existence of other persons who already fulfil the parental role in relation to the child;
(h)the impact of the person’s prior conduct and whether that conduct has, or has had, a negative or positive impact on the child;
(i)the time that the child has spent in Australia;
(j)any Court orders relating to parental access and care arrangements;
(k)any known wishes expressed by the child;
(l)whether the child is likely to accompany the person overseas in the event the person is removed from Australia;
(m)the circumstances of the probable country of future residence, including the educational facilities and the standard of health support system (if any) of the country should the person not be permitted to enter or remain in Australia but taking into account that a higher standard of health, educational or other services in Australia does not of itself mean that a non-citizen child should not be removed to another country;
(n)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(o)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children generally adapt to new circumstances.”
HD has lived her whole life in Australia and is an Australian citizen but she understands Vietnamese even if Mr Tang does not think that she speaks it well. She spends a lot of time with her grandmother and with her uncle and his family, which includes her 12 year old cousin. The extent to which the family maintains Vietnamese traditions was not addressed in the evidence. Having listened to HD’s description of her school, her friends, her cousins and her social activities, I am satisfied that she is imbued in the Australian way of life with, perhaps, the boundaries of behaviour clearly drawn.
For his part, Mr Tang has not played a full parental role in HD’s life since she was a one year old baby. For all practical purposes, Mrs Tran has been HD’s guardian. It has been Mrs Tran who sets the boundaries on HD’s activities and Mr Tang’s visits. Those boundaries, I find, are centred on HD’s education and on its continuing without interruption. Mr Tang has visited his daughter every two or three weeks unless he is in prison or detained or overseas. His periods overseas total approximately 16 months between July 2002 and June 2008. When imprisoned, he has maintained telephone contact although the extent of that contact is not clear for the notes of Corrections Service Officers suggest that there were periods when he was not making regular contact with his family. For all that, I accept that Mr Tang has kept contact with his daughter when he was in prison even if there were, on occasions, periods when his contact was a little less frequent.
I would have started with a statement of principles such as that found in the judgment of McColl JA, with whom RS Hulme and Hislop JJA agreed, in Regina v Richard Lipton:[132]
“84. Public interest immunity is a doctrine of substantive law. It represents a fundamental immunity. It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest. The balancing process applied in determining whether a claim for public interest immunity should be upheld requires that the public interest in confidentiality must be weighed against the public interest in disclosure: Whealy J in R v Baladjam (No 31 ) [2008] NSWSC 1453 (at [29]) applying Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 (at 588 - 589). Section 130 of the Evidence Act invokes the same two stage process of analysis as the common law: State of New South Wales v Public Transport Ticketing (at [42] - [43]) per Allsop P (Hodgson JA and Sackville AJA agreeing).
85. Public interest immunity is not a privilege, which may be waived by the Crown or by any party: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 (at 436) per Lord Fraser; Cross on Evidence, LexisNexis, (at [27005]). A judge (or any litigant or witness) may raise the question whether a claim for public interest immunity should be made in relation to documents even if no objection on that basis is taken: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 (at 44) per Gibbs ACJ; (at 58 - 59) per Stephen J.”
[132] [2011] NSWCCA 247
In Sankey v. Whitlam,[133] to which her Honour referred, Gibbs, ACJ had said that a claim for public interest immunity in relation to documents would only arise:
“… because of the class to which they belong. Speaking generally, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words that the law recognises that there is a class of documents which in the public interest should be immune from disclosure. The class includes Cabinet minutes and minutes of discussions between heads of departments ... papers brought into existence for the purpose of preparing a submission to Cabinet ... and indeed any documents which relate to the framing of government policy at a high level ... According to Lord Reid, the class would extend to ‘all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials and correspondence with outside bodies’; ...
One reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published [that] might affect the frankness and candour of those preparing them ...
Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject matter with which they deal.”[134]
[133] [1978] HCA 43; 142 CLR 1; 21 ALR 505; 53 ALJR 11
[134] [1978] HCA 43; 142 CLR 1; 21 ALR 505; 53 ALJR 11 at 39-40; 526-527; 21-22
In Australian Securities Commission v Zarro,[135] Lockhart, J said –
“Although objection may in some cases be taken to production of documents because they belong to a class of documents which in the public interest ought not to be produced and although the class is not closed, it must only be in rare cases of documents at high levels of government involving matters of national importance that the class doctrine can apply.”[136]
[135] (1992) 36 FCR 40
[136] (1992) 36 FCR 40 at 46
These authorities have spoken of public interest immunity in terms of protecting a class of documents. The immunity may also be relevant in terms of the particular content of documents.[137] The doctrine of public interest immunity has been used to protect disclosure of information that would disclose the identity of police informers[138] and where there is a real risk of harm to informers.[139] The rationale for the protection of informers and the wider rationale of the application of the doctrine in the context of the criminal law was explained by Hunt CJ at CL, with whom Studdert J agreed, in Attorney-General for New South Wales v Stuart:[140]
“ The identity of a police informer has as a matter of public policy been protected against disclosure since at least Marks v Beyfus (1890) 25 QBD 494 at 498, 500, if not earlier. This species of public interest immunity was recognised in many cases, including Duncan v Cammell, Laird & Co Ltd [1942] AC 624 at 633-634, in Rogers v Home Secretary (at 401, 407) in Sankey v Whitlam (at 61) and in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233-234, 242, 246-247. It covers any material by which a shrewd idea might be conveyed as to the identity of the informer: Rogers v Home Secretary (at 401). Its rationale is that, if the identity of the informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 232, 241; Sankey v Whitlam (at 65-66); Cain v Glass (No 2) (at 247). There is an exception to the rule, in that disclosure of the identity of the informer will be ordered when required to establish the innocence of an accused person: Marks v Beyfus (at 498, 500); D v National Society for the Prevention of Cruelty to Children (at 218, 232); Sankey v Whitlam (at 42).
This particular public interest in protecting the identity of police informers appears to be part of a broader public interest, the maintenance of social peace and order, as it is described in D v National Society for the Prevention of Cruelty to Children (at 231). As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities: Conway v Rimmer (at 953-954); or which may impede or frustrate the police in that C pursuit: ibid (at 972); or which may reveal matters to the prejudice of future police activities: Young v Quin (1985) 4 FCR 483 at 492; 59 ALR 225 at 234; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423 at 436-437; and on appeal (1991) 31 FCR 523 at 527-528; 103 ALR 167 at 172; 58 A Crim R 1 at 5. Its rationale is that, if such information were disclosed prior to charges being laid (so that criminals would know what information the police have about them), they will be able to tailor their stories to facts which cannot be disputed, to organise their responses to questions and to arrange alibis. Harm may come or be threatened to prospective witnesses before being interviewed by the police, particularly in relation to inquiries about crimes of violence.”[141]
[137] Sankey v Whitlam [1978] HCA 43; 142 CLR 1; 21 ALR 505; 53 ALJR 11 at 46; 531-532; 24 per Gibbs ACJ
[138] See, for example, Marks v Beyfus (1890) 25 QBD 494 at 498, 500 and approved by the Victorian Court of Appeal in Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22 (Warren CJ, Maxwell P and Charles JA) at [102]; 46 per Charles JA
[139] Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-675
[140] (1994) 34 NSWLR 667; Hunt CJ at CL; Smart and Studdert JJ
[141] (1994) 34 NSWLR 667 at 674-675
The claim made by the Board that its documents are exempt from disclosure would first have to be considered in light of the principles expressed in cases such as these. It might have been necessary to inspect the documents for, unlike a claim for public interest immunity in relation to, say, a Cabinet document, it is not necessarily the case that the Board’s documents, as a class, are protected from disclosure. The claim would depend upon the contents of those documents and the Tribunal might have to inspect them in determining the claim. That does not mean that the parties or even their legal representative should be permitted to inspect the documents.[142]
[142] The Tribunal is in no different position from a court. The duty to inspect where necessary to resolve a claim for public interest immunity was recognised by the High Court in The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 620 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ; Toohey J dissenting. Justice Toohey discussed the difficulties of allowing inspection by the parties’ legal representatives on an undertaking that they not disclose the information to their clients: (1993) 176 CLR 604 at 638. The New South Wales Court of Appeal has considered the circumstances in which it may be appropriate for a court, through its Registrar, to ask that the Attorney-General appoint a Special Counsel to assist it in resolving a claim for public interest immunity: State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200; Allsop P with whom Hodgson JA and Sackville AJA agreed.
Even if it is established that documents, whether because of their class or contents, are documents that come within those generally protected by public interest immunity, the conclusion that they are exempt from production on a summons does not necessarily follow. As McColl JA said in Regina v Richard Lipton, there is a balancing process to be applied. The public interest in confidentiality must be weighed against the public interest in disclosure. Whether a criminal or civil trial in a court, the public interest in disclosure may be expressed in terms of the public interest in ensuring that the parties to the matter are accorded procedural fairness. An accused is ordinarily entitled to have access to material that may assist in defending a criminal charge. A party to a civil case is ordinarily entitled to have a reasonable opportunity to put a case and, in so doing, to be able to refer to and rely upon relevant material.
The position is no different in merits review exercised as part of the Commonwealth’s executive power. The Tribunal’s power to conduct merits review is one manifestation of its exercise but is itself based on the judicial model.[143] That means that its members are required “to act judicially, that is to say, with judicial fairness and detachment”.[144] They are obliged to accord the parties procedural fairness[145] and to comply with their obligations under s 39(1) of the AAT Act to give the parties a reasonable opportunity to present a case but must, at the same time, comply with the substantive law. Public interest immunity is no less a part of the substantive law than legal professional privilege and it must have regard to both unless Parliament enacts to the contrary.[146]
[143] Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ
[144] Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577; 2 ALD 60 at 539; 68-69 per Bowen CJ and Deane J
[145] See, for example, Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 402-3; 342-343 per Deane J.
[146] See also the analysis of the High Court in Applicant VEAL of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; 222 ALR 411; 80 ALJR 228; 87 ALD 512 at [24]-[29]; 98-100; 418-420; 234-235; 519-520 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ
F.Inspection of documents
Assuming that I were to find that the public interest in permitting Mr Tang to present his case outweighed the public interest in protecting the integrity of the parole process, I would then look to whether I should make an order permitting the parties to inspect the documents. That would require me to consider the adjectival relevance of the documents i.e. whether there is a real possibility that the documents held by the Board may assist in the resolution of issues in the proceedings in the sense explained by Moffitt P in Waind. Whether a document will ultimately prove to be admitted in evidence or whether it is even admissible as it stands, is not a relevant consideration at that stage. A party seeking inspection need not undertake to tender it in evidence or to rely on it in cross-examining a witness. The views of other parties in the case may be sought but a decision whether or not to order inspection does not turn on the determination of an issue between the parties as to the relevance or admissibility of the document.[147]
[147] [1978] NSWLR 372 at 385-386
In the body of these reasons, I have referred to the relevant legislative framework of the Migration Act and the Minister’s Direction 41. It is clear that issues such as the circumstances in which an offence was committed, a person’s behaviour in prison, health, medical and other treatment, activities while incarcerated and risk of offending if free in the Australian community are among the matters that are relevant to reviewing the Minister’s decision under the Migration Act. These are all matters that could reasonably be expected to be among the matters considered by the Board or in information collected and put to the Board for its consideration. If it proved to be the case that documents of that sort were indeed held by the Board, I would think that it would be likely that they would be found to have a real possibility of assisting in the resolution of issues in the proceedings in the sense explained by Moffitt P in Waind.
I can understand, though, that the Board would be concerned about the use to which information it has produced could be put and it is in this context that the Tribunal can use its power to restrict disclosure and its use.
Like a court, there are limits on its use. These were considered by the High Court in Hearne v Street[148] by Hayne, Heydon and Crennan JJ:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise …, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery …, answers to interrogatories …, documents produced on subpoena …, documents produced for the purposes of taxation of costs …, documents produced pursuant to a direction from an arbitrator …, documents seized pursuant to an Anton Piller order …, witness statements served pursuant to a judicial direction … and affidavits …”[149]
[148] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259; Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ
[149] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [96]; 154; 632; 1276 (footnotes omitted)
The obligation was described by Hobhouse J in the earlier case of Prudential Assurance Co v Fountain Page:[150]
“ This undertaking is implied whether the court expressly requires it or not … It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However, treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from.” [151]
[150] [1991] 3 All ER 878; 1 WLR 756
[151] [1991] 3 All ER 878; 1 WLR 756 at 885, 764
In adopting this passage, Hill J in Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd[152] went on to add:
“ The case makes clear that since the duty is owed to the court an injunction would issue to restrain a breach of the duty, which breach would constitute a contempt of court.” [153]
[152] (1994) 53 FCR 125; 124 ALR 493
[153] (1994) 53 FCR 125; 124 ALR 493 at 132; 501
In Re Rana and Military Rehabilitation and Compensation Commission,[154] I considered the extent and application of the obligation and its application in the Tribunal.[155] I will not repeat my analysis but adopt it as part of these reasons. I noted that Sundberg J decided in Otter Gold Mines Ltd v McDonald[156] that the obligation or implied undertaking extends to proceedings in the Tribunal in so far as documents are produced under compulsion. Compulsion, his Honour said, is the true basis on which the implied undertaking lies. That was the basis on which the documents in question had been produced to the Tribunal in the proceedings with which he was concerned as they had been, as in this case, produced under summons. If the documents were used contrary to the undertaking, it would be open to argue that it would, had it occurred in a court, constitute a contempt of court. Therefore, it is arguable that the person would be guilty of an offence under s 63(5) of the AAT Act. The Tribunal has no judicial power to determine whether the person is in breach of that provision but it could refer the matter to the Director of Public Prosecutions.
[154] [2009] AATA 361; 109 ALD 217; 50 AAR 191
[155] [2009] AATA 361; 109 ALD 217; 50 AAR 191 at [48]-[61]; 229-233; 204-207
[156] (1997) 76 FCR 467; 48 ALD 222; 147 ALR 322
If it should be thought that the protection offered by the implied undertaking or obligation not to disclose were not enough, the Tribunal may make an order under s 35(2) of the AAT Act. Such an order could be fashioned to restrict disclosure to the persons engaged in the review process. It would be a written statement about which there could be no mistake as to its meaning. Potentially, s 63(5) is also available should a party ignore the restrictions on disclosure and communication.
I certify that the preceding one hundred and eighty paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi, Associate
Dates of Hearing 10 and 15 May 2012
Date of Decision 1 June 2012
Migration Agent for the Applicant Dr Tung Bao NgoSolicitor for the Respondent Mr David Brown
Australian Government Solicitor
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