Te and Minister for Immigration and Multicultural Affairs - [2000] AATA 848

DECISION AND REASONS FOR DECISION [2000] AATA 848

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. V98/889

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Meng Kok TE
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date22 September 2000
PlaceMelbourne

Decision      The decision under review is affirmed.
  . .......(Sgd. B.M. Forrest).............
  Deputy President
CATCHWORDS
MIGRATION – Deportation – applicant entered Australia on Cambodian Refugee Humanitarian visa – convictions for trafficking in heroin – General Direction – Criminal Deportation No. 9 – consideration of primary considerations – expectations of the Australian community – protection of the Australian community – consideration of other considerations – degree of hardship which may be suffered by applicant – degree of hardship to Australian citizens or permanent residents – consideration of international obligations – Convention Relating to Status of Refugees, Articles 32 and 33 – decision affirmed.
Migration Act 1958 ss. 200, 201 and 499
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees
Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
Vabaza v Minister for Immigration and Multicultural Affairs, Federal Court, 27 February 1997, 148/1997
Todea v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 735

REASONS FOR DECISION

22 September 2000 Deputy President B.M. Forrest

The applicant, Meng Kok Te is applying for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs, dated 10 July 1998, ordering pursuant to s. 200 of the Migration Act 1958 ("the Act") that the applicant be deported from Australia.
The order for deportation is founded on an offence of trafficking in a drug of dependence, for which the applicant was convicted in the Magistrates' Court of Victoria on 15 June 1992 and sentenced to twelve months imprisonment. On appeal to the County Court of Victoria heard on 16 September 1992, three months of the twelve months imprisonment was suspended for twelve months ("the deportable offence").
The relevant provisions of the Act are:
"200 The Minister may order the deportation of a non-citizen to whom this Division applies.
201 Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
…
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person."
Section 201 applies to the applicant. The deportable offence was committed on 5 June 1991. The applicant arrived in Australia on 7 July 1983 and at the time of the commission of the offence had been in Australia as a permanent resident for seven years ten months twenty-nine days.
The applicant was born in Phnom Penh, Cambodia on 7 April 1967. He had only two years of schooling in Cambodia. He was 7 or 8 years of age when the Khmer Rouge regime came to power in Cambodia. That regime closed the schools. The applicant and his family were forced to leave Phnom Penh. He initially remained living with his family in the countryside but was removed and put to work as a farm labourer. In about 1979 after the fall of the Khmer Rouge, at age 12, he was reunited with his family for a few months. He was again separated from them when his parents sent him to the border with Thailand to trade some items to assist in the family's survival. Because of the continued fighting with the Khmer Rouge at the Thai border he found he was unable to return home and remained at a border camp before being moved to a refugee camp in Thailand. He spent three years in the refugee camp prior to arrival in Australia as a refugee with Lay Haot Te who he regarded as his "brother". He was granted permanent residence on arrival. He was then 16 years of age.
When he arrived in Australia he spent two months at the Midway Hostel in Melbourne before going to live with his uncle. He attended school in Melbourne for two years while he resided with his uncle. After two years he left school and moved out of his uncle's house to live with friends in Richmond. Initially he worked for about two months at a shoe factory in Collingwood. He then worked at Repco for twelve months, followed by four months at another factory, then two years doing deliveries for a clothing company, until he had a serious car accident in 1987. After the accident he did not work until about 1990 when he worked part-time as a waiter for about four months and for two months as a fruit picker.
In 1988 he moved to Hawthorn where he lived until 1991. In late 1990 the applicant met Bich Viet Huong Tran ("Tran"), she was then age 16. A year later they commenced a relationship. She began living with him in October 1991. She was born in Vietnam on 13 June 1974 and arrived in Australia in June 1989. On 13 June 1992, on Tran's 18th birthday, she and the applicant married. At that time she was a full-time high school student.
Briefly, the circumstances of the commission of the deportable offence were as follows. On 5 June 1991 the applicant was arrested in an undercover police drug squad operation in possession of $6,700 in marked notes. This money was obtained by the applicant after supplying to his two co-accused approximately 14 grams of 80% pure heroin while under police surveillance. Shortly after his arrest a police search of the applicant's home discovered approximately 40 grams of 30% pure heroin which the applicant admitted he intended to sell. When interviewed by police the applicant made admissions that he had trafficked in heroin for the previous five months. In cross examination during the Tribunal hearing, when asked how he came by the $6,700, he said that a friend had asked him to hold it for him and it had something to do with gambling. However, he agreed that he trafficked in heroin from about March 1991. He said that he would normally purchase 7 grams of the drug then sell a portion of it to support his own addiction to smoking heroin. He said that he sold it to a friend of his age who was an addict and did not sell it to anyone else.
Upon his release from custody in November 1992 the applicant recommenced residing with Tran.
Following a police undercover operation the applicant was again taken into custody on 23 September 1993 and charged with trafficking in heroin. After a trial in the County Court, a jury found the applicant guilty of one count of trafficking in heroin between 15 June 1993 and 16 September 1993. He was sentenced on 29 May 1996 to seven years imprisonment with a non parole period of five years. An application for leave to appeal against conviction was dismissed by the Court of Appeal on 30 October 1997. The circumstances of the offence were as follows. As part of the National Crime Authority ("NCA") operation "Apex" an undercover officer was provided with a sample of heroin by a Phillip Hee ("Hee") on 15 June 1993. The sample was later analysed to be 76.5% purity. On 18 June 1993 the NCA undercover operative purchased 55.5 grams of 76.6% pure heroin for $22,000 from Hee. On 21 July 1993 Hee supplied the NCA operative with four packets of approximately 50% pure heroin for $39,000 (of which 43.2 grams worth $28,500 was sourced from the applicant). In order to discover Hee's supplier the NCA operative complained as to the quality of the latest heroin purchase. Consequently, Hee introduced the NCA operative to the applicant and they had a conversation regarding the quality of the heroin supplied. On 29 July 1993 the NCA operative and the applicant again met and they agreed to do business directly. At a meeting on 3 August 1993 they discussed the supply of two ounces of heroin, and the applicant indicated this would not be possible for three months and referred to a container with about 50 kilograms of heroin arriving every four months. On 5 August 1993 the applicant provided a sample of 51% purity. On 19 August 1993 the applicant and the NCA operative went to Sydney where they met with a Van Don To. The next day the three met again and the operative paid $63,000 for 8 ounces of heroin of around 41-45% purity. An amount of $3,000 was paid to the applicant as commission in respect of this transaction. On 16 September 1993, in Melbourne, as part of a Victoria Police operation "Tremor", the applicant was observed by police surveillance handing an object to Viet Cong Le ("Le") shortly before Le sold an ounce of 76% pure heroin to undercover police for the sum of $10,500. The trial judge calculated that over the three month period 203 grams of heroin of between 38.7% and 76.6% purity were trafficked by the applicant at a total price of $124,000. His Honour stated that the street value of the heroin would substantially exceed the selling price and that the applicant was over the period a wholesaler or a commission wholesaler of heroin.
The applicant and Tran separated in September 1993 after he was arrested. It was her evidence that she was not aware of the applicant's involvement in heroin. She never saw him use drugs. In relation to the 1993 offences it was her belief that the applicant was "set up". After his arrest in September 1993 she would visit him in prison, however she stopped visiting him when he was transferred to a country prison. The applicant and Tran were divorced on 6 October 1996. In her evidence she said that she divorced because she was concerned about the effect of his offences on her residency in Australia. The applicant had suggested they divorce. Tran became an Australian citizen on 2 October 1997. In evidence both said they wished to resume the relationship. However, if the applicant is deported Tran would stay in Australia, stating her belief that she would not be able to obtain a visa to enable her to live in Cambodia, but she would go and visit him there.
The Minister for Immigration and Multicultural Affairs, Mr Ruddock, has issued a General Direction under s. 499 of the Act of Australia's Criminal Deportation Policy ("the Direction") dated 21 December 1998 and with effect from that date. It replaces the Policy Statement "Australia's Criminal Deportation Policy" issued on 24 December 1992 by the then Minister, Mr Hand. Generally speaking, the Direction covers the same issues as the previous policy. The weight to be given to the relevant considerations is stated more explicitly in the Direction than in the previous Policy Statement and, while the Tribunal took into account the previous policy unless there were cogent reasons to depart from the policy, the Direction has the force of s. 499 of the Act. While the decision to deport the applicant was made while the previous Policy Statement was in force it was common ground that the Direction applies in this review.
The Direction requires decision makers to have regard to two "primary considerations" and relevant "other considerations". Further, paragraph 5 states that a "decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations".
There are two primary considerations (para. 6):
"(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children."
As the applicant does not have any children the second primary consideration is not relevant to his circumstances.
The primary consideration of community expectations is identified as having two aspects (para. 8):
"(a)the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.":
Government policy on community protection is stated generally in paragraph 9:
"It is the Government's view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government's view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community. The Government considers that children and young people are especially at risk in this area. The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision maker should have due regard to the Government's view in this respect."
In assessing the level of risk to the community and the need for its protection the Direction says that three factors are relevant (para. 10):
"(a) the seriousness and nature of the crime;
(b) the risk of recidivism; and
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons."
Paragraph 11 of the Direction lists categories of offences that the Government considers to be very serious. Included within the categories of offences in sub paragraph (a) is "the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs". This sub paragraph states the following:

Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.
The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are (sic) a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.

The deportation offence falls within the very serious category. It involved the supply of substantial quantities of heroin. The seriousness of the criminality is exacerbated by the escalation in seriousness of the offending as reflected in the circumstances of the 1996 conviction in the County Court within a relatively short time of an earlier conviction for a similar offence.
In relation to the seriousness of the 1996 conviction it was submitted on behalf of the applicant that the offending occurred in controlled circumstances initiated by undercover police; that there is no suggestion that the applicant would have committed any offence if it were not for the offers by undercover operatives to purchase the drugs, and that in fact the drugs were only supplied to police.
I do not consider that the fact that the purchasers of the heroin were undercover police lessens in any meaningful way the seriousness of the offence. Clearly, the applicant was prepared to engage in the illegal activity of heroin trafficking on a substantial scale, so long as the price was paid indicating by his activities an indifference to the consequences of his actions and the welfare of the community.
In his evidence to the Tribunal the applicant said that at the time he dealt in heroin he was addicted to the drug and used a gram of it per day by smoking. He said that his dealing was to finance his own habit. However the trial judge said when sentencing the applicant in 1996:
"There is no suggestion that you are or have been an addict or even a user of heroin. The only conclusion that one can draw is that you trafficked in heroin for money and out of the motivation of obtaining money."
I accept that the applicant's heroin trafficking was for financial gain and place little credibility on his assertion that his offending was motivated by a personal addiction.
In assessing the applicant's risk of recidivism I note that, in addition to the two heroin trafficking convictions, the applicant was convicted of a number of other offences on three separate occasions. On 14 July 1987, for resist police/hinder police – fine $150, behave in offensive manner – fine $150 and hinder police – fine $100. On 10 September 1991, for unlawful assault, assault in company, assault by kicking and failing to answer bail – fine $200 on each charge. On 23 February 1994, for being found in a common gaming house – fine $50. I take into account that he has these convictions but in the context of the seriousness of the drug trafficking offences and assessing the risk of recidivism, they are of little weight.
Of significance of course is the applicant's involvement in heroin trafficking as described earlier. The second heroin trafficking offence took place within a period of about eight months from the date of the applicant's appeal to the County Court in respect of the deportable offence, and during the operative period of that part of his sentence which was suspended by the County Court. Further, rather than making efforts to reform at this stage his behaviour revealed a premeditated and significant escalation in his heroin trafficking activities.
As mentioned earlier I place little reliance on the applicant's evidence of personal use of heroin as being the major factor in his offending. There was some evidence before the County Court that gambling debts may have motivated the applicant and this was included in the applicant's submissions, but there was little evidence before me on this issue to suggest this was of much significance. This conclusion was also reached by the trial judge who stated:
"Although there is a basis to say you have been a gambler, I am not satisfied on the material before me that gambling contributed to your crime in a significant way."
In my view the applicant in evidence demonstrated a lack of genuine remorse for his behaviour. His apparent lack of insight into the seriousness of his offending and its destructive impact in the community is of concern in any consideration of reform. When asked about the 1996 conviction for heroin trafficking the applicant said that he was "set up" and does not accept his guilt. Tran also seems to share the applicant's view. It was submitted on the applicant's behalf that he was "lured into selling drugs to an undercover policeman". This was put to the County Court in a submission that the applicant was encouraged by the NCA operative to keep committing offences in order to facilitate the obtaining of evidence of others in the supply chain. His Honour Judge Kellam found that the sales of heroin on 15 June, 18 June, 21 July and 16 September were unrelated to any direct encouragement by the undercover operative, that the trafficking in Sydney on 20 August 1993 took place "by reason of the NCA operational decision to use you as a conduit to uncover the activities of those with whom you proposed to deal in heroin". Further, His Honour found that the "heroin purchase in Sydney on 20 August 1993 was an extension of your criminality in which you…would not have engaged in had you been arrested for your earlier criminal acts".

Whilst in prison the applicant has been a quiet prisoner. However, there have been two breaches of the Custodial Community Permit Programme. First when he returned to the prison after a 30 hour leave with approximately $1,200 for which he was said to have given no satisfactory explanation. In evidence to the Tribunal he claimed that a friend had given him the money to purchase clothes. Second, prison authorities were unable to contact him during a 62 hour leave. His explanation that he was at work experience appears to have been accepted. Under cross examination he agreed that while in prison he has received four visits from his co-offender Hee. While this contact may be perfectly innocent it does have a disquieting ring about it in that it indicates that he is maintaining some contact with former associates in the drug trade.
In 1996 while in custody the applicant successfully undertook courses in English at the Bendigo Regional Institute of TAFE. In 1997-98 he completed courses in forklift operations, computing and small business management. In 1999 the applicant contributed to a research project on the integration of Vietnamese men into the community, and was commended for his efforts by the researcher [Ex. G]. In 1998 the applicant approached the Wintex Knitting Mills to undergo work experience there. Additionally, the applicant has an offer of employment from a friend Mr David Khoo, who owns a restaurant and who gave evidence on his behalf [Ex A].
Because of the very serious nature of the applicant's heroin trafficking offences the best interests of the Australian community have to be determined taking into account the acceptable level of risk of further transgression. The community can be expected to accept only a low level of risk because of the damage further offending would cause to the community: Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98.
While the applicant has taken some positive steps to rehabilitate himself, because he does not accept his 1996 conviction, instead blaming others for the predicament he finds himself in, he has no awareness of the impact of his behaviour. In my assessment he is not a low risk of reoffending. I am not suggesting that the risk is at the other end of the scale but it is a risk which, in my assessment, is moderate to high which is unacceptable in the circumstances.
The Direction requires that the question of general deterrence be considered in an assessment of the need to protect the Australian community. On behalf of the applicant it was submitted that the crimes were committed due to a gambling problem and the associated debts, and that the deterrence factor has been spent by the term of imprisonment followed by two years of immigration detention.
General deterrence was a significant issue taken into account when the seven year term of imprisonment was imposed. However, his two years in immigration detention is largely due to his pursuit of unsuccessful legal challenges to the validity of the deportation order. Nevertheless, the applicant has now been without his liberty for some seven years and I accept that there is a level of deterrence in the time he has spent in custody sufficient to act as a deterrence to those non-citizens with whom he is likely to remain in contact.
The respondent submitted that the community would expect the applicant to be deported because of the abhorrence of his offending. I do not agree that deportation should follow simply on the basis of the abhorrence of the offences of drug trafficking and without having regard to the primary and other considerations as required by the Direction to be taken into account. The "abhorrence" of the offences is to be given, as the Direction indicates, such weight as is appropriate proportionally to the decision makers understanding of community attitudes to the offences. In this case I am satisfied that the weight of this factor is considerable.
The "common" considerations are dealt with in paragraph 7 and repeated under the heading "Other Considerations" in paragraph 21 of the Direction. These matters, which relate to hardship factors, are to be given less weight than primary considerations. They include:
"(a) the degree of hardship which may be suffered by the potential deportee; and
(b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee's family (other than children whose best interests are a primary consideration)."
In relation to the degree of hardship to the potential deportee, the factors to be considered include (para. 22):
"…
(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported;
(c)the degree and extent of the potential deportee's ties with the likely country of return;
(d) the strength of other family, social or business ties in Australia;
(e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration."
The applicant's personal circumstances have been referred to earlier. He has endured family dislocation as a youth, spending time in a transit camp and arriving in Australia as a refugee at 16 years of age and living here since. He seemed to adjust reasonably well in Australia, attending school and was gainfully employed for a number of years before embarking on the offending leading to the making of the deportation order. He appears to have led a relatively stable life in Australia until he commenced trafficking in heroin in 1991. From then, although meeting and marrying Tran, he choose to follow a path of drug trafficking for financial gain.
He has ties to Australia, he and Tran have maintained a relationship despite their divorce and his uncle and family maintain an interest in his welfare. He also has friends here, including Mr Khoo. He has not maintained contact with his "brother" Lay Haot Te with whom he arrived in Australia since his arrest in 1993.
The applicant has some ties to Cambodia. The applicant's parent's are living in Cambodia. They are elderly and believed to be in poor health [Ex C]. Cambodia remains an impoverished country. They are said to live in difficult financial circumstances. The applicant's uncle considers that if the applicant is deported he will suffer significantly because he has not been registered by the United Nations as a Cambodian resident.
The respondent submits that there is no appreciable risk that the applicant will be denied residency in Cambodia. Mr Haydon, the respondent's principal migration officer in Phnom Penh stated in evidence that in Cambodia there are a large number of persons with irregular legal status so that the applicant's lack of registration by the United Nations is not unusual. Further, Mr Haydon believes that the fact that the applicant is able to speak English will be of benefit to him if he is returned to Cambodia.
It was submitted on behalf of the applicant that if he is returned to Cambodia he may face further detention. I am satisfied that this submission is more a matter of speculation than a concern of substance having regard to Mr Haydon's evidence and the material before me. I accept that the applicant will suffer hardship if deported to Cambodia. He will face an uncertain future which, in view of his parents limited resources, will very much depend on what he can arrange for himself. However, he is a young man of 33 years of age, not burdened by any health problems, he speaks Cambodian, and has acquired a reasonable proficiency in English. In addition he has demonstrated employment skills having worked in Australia for about four years.
I accept that Tran, although divorced from the applicant, retains a relationship with him. She made it clear that her relationship with the applicant would not impinge upon her right to remain in Australian which is a priority for her. She would suffer some but not severe hardship if he is deported.
The applicant's uncle, his spouse, daughter and son are Australian citizens. They support the applicant's efforts to remain in Australia and have offered assistance in re-settling if he is permitted to remain. I accept that the applicant's uncle took on a fatherly role when the applicant came to Australia and remains committed to the applicant. However, the applicant has maintained quite limited contact with his uncle and family since he left their home. Any hardship they would suffer by his removal is limited.
A matter requiring consideration is the applicant's status in Australia in the context of Australia's obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). The applicant entered Australia as a refugee and the obligations that Australia has to such a person under the Convention is a matter to be taken into account. While Articles 32 and 33 of the Convention limit the circumstances in which a refugee may be expelled from a contracting state such as Australia, they do not preclude a contracting state from expelling or removing the applicant: Vabaza v Minister for Immigration and Multicultural Affairs, Federal Court, 27 February 1997, 148/1997.
The Convention so far as relevant for present purposes provides:

"ARTICLE 32
Expulsion
1The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

ARTICLE 33
Prohibition of expulsion or return ("refoulement")
1No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

A person convicted of possession of heroin for trafficking purposes and who by recidivist behaviour is considered to be an unacceptable risk to the community may be expelled under Article 32 on "public order" grounds: Todea v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 735 at 745-46. The finding that the applicant is an unacceptable risk to the community is dealt with separately in these reasons.
I do not accept that there is any likelihood of the applicant being punished if returned to Cambodia. There is no credible evidence the applicant's life or freedom is under threat for a Convention reason if he is returned to Cambodia. According to the US Department of State 1999 Country Reports on Human Rights Practices in Cambodia there were no reports of political prisoners.
On the available material the Tribunal is entitled to assume and does so that the current coalition government of Cambodia formed following the 1998 national elections is not likely to take any action adverse to the applicant. As a consequence Article 33(1) of the Convention does not apply to the applicant. It is therefore unnecessary to consider Article 33(2).
The task of the Tribunal is to balance the competing considerations within the framework of Australia's deportation policy as contained in the Direction. Against deportation is the hardship to the applicant and the humanitarian considerations in deporting a person who arrived in Australia as a refugee. Humanitarian considerations must always be considered and not swept aside in the cause of the interests of the community. Some other persons are also affected by the deportation but to a much lesser extent. However, having considered all of the evidence and submissions and the matters required by the Direction to be taken into account, I have come to the conclusion that the factors against deportation are outweighed by the seriousness of the applicant's heroin trafficking and the protection of the community from the risk by his continued presence in Australia of any further offending, in my view unacceptable. The community is entitled to protection from drug trafficking of the scale and degree of involvement revealed by the applicant's crimes, that of a wholesaler (or a commission agent of a wholesaler) of heroin as described when sentenced in 1996 and the unacceptable risk of reoffending notwithstanding the humanitarian consideration involved in deportation of a person who has spent as long in Australia as the applicant.
For these reasons the decision under review is affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  31 July and 1 August 2000
Date of Decision  22 September 2000
Counsel for the Applicant        Mr D. Perkins
Solicitor for Applicant               Kuek & Associates
For the Respondent                 Ms P. Chadderton, departmental advocate