Tran and Minister for Immigration and Citizenship
[2011] AATA 702
•11 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 702
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2995
GENERAL ADMINISTRATIVE DIVISION
)
Re THANH QUOC TRAN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms J L Redfern, Senior Member Date11 October 2011
PlaceSydney
Decision The Tribunal decides that the decision under review is set aside and the discretion of the Minister should be exercised in Mr Tran’s favour.
..................[SGD]....................
Ms J L Redfern
Senior Member
CATCHWORDS – Migration – visa – cancellation – character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 -– Minister’s direction issued under s 499(1) of the Migration Act 1958 – Direction No 41 applied – protection of the Australian community – seriousness and nature of the relevant conduct – mitigating factors – the risk conduct may be repeated– minor when commenced living in Australia– hardship likely to be experienced by person – whether tribunal can take into account untranslated document – circumstances in which oral evidence can be given - decision under review is set aside.
LEGISLATION
Migration Act (Cth) 1958, Ss 501(2), 501(6)(a), 501(7), 501(7)(c), 501(7)(d)
Direction [No. 41] - Visa Refusal and Cancellation under section 501
CASES
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318
SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202
RCLN and Minister for Immigration and Citizenship [2011] AATA 412
Royal Abbott and Minister for Immigration and Citizenship [2008] AATA 1130
Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
REASONS FOR DECISION
11 October 2011 Ms J L Redfern, Senior Member BACKGROUND
1. Mr Thanh Quoc Tran is a citizen of Vietnam who arrived in Australia on 12 December 1993 when he was 15 years old. He was granted a Class BB, Subclass 155 (Five Year Resident Return) Visa on 10 April 2007. Mr Tran has lived in Australia since 1993 but has travelled back to Vietnam on three occasions during this period.
2. Mr Tran has a history of criminal convictions in Australia, primarily for drug related offences, starting from about October 1995. On 18 July 2007, Mr Tran was convicted in the District Court of New South Wales for importing a marketable quantity of a border controlled drug, being heroin, and was sentenced to six years imprisonment, with a non-parole period of four years. He was released on 25 August 2011 but has been in immigration detention in Villawood Detention Centre since this time.
3. Where a person does not satisfy the “character test” as set out in the Migration Act 1958 (the Act), the Minister has a discretion to cancel their visa. It is common ground that Mr Tran does not satisfy the character test because of his criminal history. On 5 July 2011, a delegate of the Minister cancelled Mr Tran’s visa. Mr Tran has applied for a review of this decision.
ISSUES FOR DETERMINATION
4. The Minister contends the Tribunal should affirm the decision of the delegate as the primary consideration of protection of the Australian community weighs strongly in favour of cancelling Mr Tran’s visa.
5. Mr Tran agrees his criminal history is serious but says there were mitigating circumstances leading to his convictions and the risk of him reoffending is low. On the other hand, he has significant links with Australia and has spent much of his teenage and adult years in Australia.
6. The issue for determination is how the discretion under the Act should be exercised in the circumstances of this case. A preliminary issue was raised during the hearing about whether the Tribunal could have regard to the evidence of Mrs Nu Thi Nguyen, Mr Tran’s mother, when the statement provided by her was in Vietnamese and was not translated into English at the time of service or at any time before the hearing.
LEGISLATIVE AND POLICY FRAMEWORK
7. Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”.
8. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. “Substantial criminal record” is defined in s 501(7) as, among other things, having been: “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c)) or “sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more” (s 501(7)(d)).
9. Section 499(1) of the Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers but the directions cannot be inconsistent with the Act or the regulations (s 499(1A)). The Tribunal must comply with the written direction (s 499(2)).
10. The Minister has delegated the exercise of the discretion under s 501(2) and has issued a written direction under s 499(1) of the Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. The direction commenced on 15 June 2009 and is known as Direction [No. 41] - Visa Refusal and cancellation under section 501 of the Act (Direction No 41).
11. Direction No 41 contains a number of “primary considerations” and “other considerations” to which the decision-maker, and this Tribunal, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
12. The “primary considerations” in Direction No 41 are set out in paragraph 10(1):
“10 The primary considerations
(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
13. Direction No 41 provides guidance on the range of factors which must be taken into account when assessing the “primary considerations”. Paragraph 11 of Direction 41 identifies a number of “other considerations” that must be taken into account if relevant.
14. Section 500(1) of the Act provides for applications to be made to the Tribunal for the review of certain decisions, such as a decision to cancel a visa made under s 501(2). Relevantly, s 500(6H) provides that,
“the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”
15. Section 500(6J) provides that,
“the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”
16. These provisions are relevant to this case because Mr Tran argues the statement of Mrs Nu Thi Nguyen should be taken into account by the Tribunal and a translation by the interpreter at the hearing should be allowed as oral evidence to amplify or explain the statement made in Vietnamese. Alternatively, Mrs Nguyen should be allowed to give oral evidence in respect of these matters as she had provided a statement, albeit in Vietnamese, within at least two business days before the hearing. The Minister opposes this evidence and his legal representatives argue the Tribunal must not take this evidence into account.
HOW SHOULD THE DISCRETION BE EXERCISED
17. The “primary considerations” that appear at paragraph [10] of Direction No 41 must be taken into account when exercising discretion under s 501(2) of the Act. There are three “primary considerations” that are relevant to Mr Tran and they are:
“(1) …
(a) The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;…
(b) Whether the person was a minor when they began living in Australia;
(c) The length of time the person has been ordinarily resident in Australia prior to engaging in the criminal activity or other relevant conduct;”
18. It is common ground that the other “primary considerations” are not relevant to Mr Tran.
19. There are also a number of “other considerations” which are relevant to Mr Tran that should be taken into account. These are as set out in paragraph 11 of Direction No 41. They include: family ties; the nature and extent of any relationships; any links to the country to which the person would be removed and hardship likely to be experienced by the person. Where relevant, these considerations must be taken into account “but, generally they should be given less weight than the primary considerations” (sub-paragraph 11(2)).
BACKGROUND FACTS
20. Mr Tran was born in Ho Chi Minh City, Vietnam in August 1978. He is a citizen of Vietnam and moved to live in Melbourne in December 1993 when he was 15 years old with his mother, Mrs Nu Thi Nguyen, and two brothers, Mr Trang Van Tran and Mr Thanh Hung Tran. Mr Tran has five brothers, although one brother passed away approximately four years ago, and a sister. His brothers, sister and mother live in Victoria. He also has an uncle, four cousins and ten nieces and nephews who live in Australia.
21. Mr Tran attended Collingwood High School in Melbourne for two years and completed Year 9. He left school in about 1994 and worked in various jobs, including as an insulation installer with his uncle in a business called ‘Flexicoat Home Insulation’ for about seven years. From about 2004 until 2007, Mr Tran worked with his eldest brother, Mr Tran Van Tran, installing insulation in his brother’s company, called ‘Four Seasons Home Insulation’.
22. On 10 April 2007, Mr Tran was granted a Class BB, Subclass 155 (Five Year Resident Return) Visa.
23. Mr Tran was convicted of drug related offences in November 1995, when he was 17 years old. This was the start of an eight year history of criminal convictions, mostly involving drug related offences, until November 2003. During this time, Mr Tran was convicted of 35 offences, although these offences appear to relate to nine incidents where Mr Tran was convicted with multiple offences. Mr Tran breached a number of court orders and failed to appear in court to answer charges on at least six occasions. Warrants were issued for his arrest and he was subsequently convicted, serving approximately two years and three months imprisonment in respect of various offences from 1996 until 2004. During this period, Mr Tran was convicted of offences relating to the use and possession of drugs, trafficking of drugs (mostly heroin), failure to answer bail, theft, unlicensed and dangerous driving and stating a false name when requested by police.
24. Mr Tran did not reoffend for a period of about three and a half years and there were no convictions or charges recorded from November 2003 until March 2007, when Mr Tran was charged with 4 offences (two offences of obtaining property by deception, failure to answer bail and making a false document). He was sentenced to four months imprisonment, to be served by way of an intensive corrections order. Within a month of serving this sentence, Mr Tran was charged with importing a marketable quantity of a border controlled drug. He pleaded guilty and on 18 July 2008 Mr Tran was sentenced by Judge Sweeney in the District Court of New South Wales to six years imprisonment from 26 August 2007, with a non-parole period of four years.
25. In sentencing Mr Tran, Judge Sweeney accepted Mr Tran’s evidence that he had committed the offence to pay gambling debts incurred at the Crown Casino in Melbourne. It was also accepted that Mr Tran had a gambling addiction and had committed the offences because he “felt threatened and felt under pressure to involve himself in the importation to pay off the debts”. Mr Tran was approached by a person to bring illegal drugs into Australia from Vietnam, for which he would be paid $42,000. Mr Tran collected the drugs in Vietnam but was detained by customs officers on arrival into Sydney Airport. He was found to have approximately 193.4 grams of pure heroin in his abdomen. This amount was at the top of the range of importing a “low level trafficable quantity” of heroin. The Judge accepted that Mr Tran was operating as a courier rather than importer and took account of his lengthy criminal record but noted that the offences were “consistent with a person having a drug addiction”.
26. Mr Tran served his time in prisons in New South Wales and was transferred to the Junee Correctional Centre from Bathurst Correctional Centre on 26 March 2010, where he remained until his release on 25 August 2011.
27. On 31 August 2010 the Department of Immigration and Citizenship (the Department) sent a letter to Mr Tran putting him on notice of the intention to cancel his visa. Mr Tran responded by letter dated 20 September 2010 and on 5 July 2011 a delegate of the Minister cancelled Mr Tran’s visa. He was notified of the cancellation by letter dated 8 July 2011.
28. Mr Tran was released into immigration detention at Villawood Detention Centre on 25 August 2011.
PRELIMINARY EVIDENTIARY ISSUES
28. Mr Tran served a statement from his mother, Mrs Nu Thi Nguyen, as an annexure to his Affidavit, on 19 September 2011. The Affidavit was received by the legal representatives acting for the Minister late on that day and it was common ground that this was at least two business days before the hearing. The statement was a handwritten letter dated 11 September 2011 and was in Vietnamese. There was no translation provided. The Minister submitted that the statement could not be taken into account as it was not translated. It was also submitted that Mrs Nguyen should not be allowed to give oral evidence about the matters contained in the statement as this would be contrary to s 500 (6H) of the Act. Mr Tran’s Counsel pressed the issue.
29. Section 500(6J) provides that the Tribunal must not have regard to any documents submitted in support of a person’s case unless a copy of the document is given to the Minister at least two business days before the hearing. The handwritten statement was given to the Minister within that period and in my view I can have regard to the fact that a statement has been provided by Mrs Nguyen in support of her son’s case. However, the statement is of limited value as it has not been translated. It was proposed that the statement be translated by the interpreter during the course of the hearing but this was also opposed on the basis that this would be contrary to s 500 (6H) of the Act.
30. The preliminary issue for determination was therefore whether the Tribunal can have regard to a translation and/or oral evidence by Mrs Nguyen on the grounds that this was “ information... set out in a written statement given to the Minister at least two business days before the Tribunal holds the hearing”.
31. There is no express provision that the written statement must be translated into English but it is clear that subsections 500 (6J) and 500 (6H) are intended to ensure “the Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing.” (Full Court, Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 at [25]. The Minister submits that to give effect to this intention, a translated version of the statement of Mrs Nguyen must also be provided within the prescribed period. It is said to be difficult to obtain an official translation within two days and this means the Minister is at a disadvantage. Mr Tran relies on the fact that a written statement from his mother was given to the Minister within the prescribed period, although it is agreed by both parties that as a practical matter the statement would first have to be translated before the Tribunal could have regard to the evidence of Mrs Nguyen.
32. In other cases before this Tribunal, oral evidence that explains or amplifies a written statement already provided has been allowed and taken into account by the Tribunal where relevant (Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 and Royal Abbott and Minister for Immigration and Citizenship [2008] AATA 1130). This is consistent with the legislative prohibitions because the Minister, and those who represent him, will still be sufficiently apprised of the case that needs to be answered. There is no disadvantage. The Minister accepts this position but submits that a translation goes beyond explanation or amplification.
33. I agree with this submission. Oral evidence translating the meaning of a document is significant and in my view is properly categorised as new information. A translation does not explain or amplify the information in the written statement but rather creates information. A party that does not have adequate notice of the translated version of a document or statement may be disadvantaged in responding to any issues raised, particularly if the translation is not provided until the hearing. Procedural fairness requires that parties should be given adequate opportunity to answer the case being put against them. Indeed, at the preliminary directions hearings in this matter, I directed the Minister to provide Mr Tran with certain documents translated into Vietnamese. I made these directions because at that stage Mr Tran was unrepresented, had limited access to friends, family or associates who could translate documents for him and apparently had limited understanding of English, particularly written communications. He was required to serve his evidence in a tight timeframe and I formed the view he would be disadvantaged if he was unable to read the documents relied on by the Minister. There are similar considerations with a written statement served on the Minister.
34. It also follows that the Tribunal should not have regard to oral evidence from Mrs Nguyen on her statement. However, in his affidavit Mr Tran provided evidence about a number of matters relating to his mother and the question arose as to whether the Tribunal could have regard to oral evidence from Mrs Nguyen on these matters.
35. A similar issue was considered by Deputy President Jarvis in SAAC and the Minister for Immigration and Multicultural Indigenous Affairs (2004) 85 ALD 202 at 212 at [41] as follows:
“…The subsection refers to “information”, and does not relate the prohibition on the receipt of information to the source of that information, and does not refer to the tribunal being constrained from having regard to the evidence of a witness unless he or she has previously provided a written witness statement. It seems to me that circumstances could arise where information has been provided to the minister from one witness, but that witness might later be unable to give evidence; if a second witness were able to provide the same information, s 500(6H) would not in my opinion prevent the tribunal from having regard to this information. The purpose of s 500(6H) would still be achieved, because the applicant would not have changed the nature of his or her case, and would not thereby be putting a new case (to use the language of Gray J in Goldie, above).”
36. I agree with Deputy President Jarvis and have previously followed this reasoning in RCLN and Minister for Immigration and Citizenship [2011] AATA 412. As such, I allowed Mrs Nguyen to give limited oral evidence on these matters. The lawyers for the Minister cross-examined Mrs Nguyen on these matters and a broader range of issues and her evidence is referred to below.
THE EVIDENCE
37. Mr Tran gave evidence that he had lived in Australia since 1993 and all of his immediate family were in Australia. He is close to his oldest brother, Mr Trang Van Tran, and is also close with his nephews, Mr Huy Duc Tran (also known as Jamie) and Phillip Toan Duc Tran. He spoke to Mr Trang Van Tran on a regular basis while he was in prison, worked with him for four years before going to prison in 2007, and lived with him and his nephews for a number of years. He told the Tribunal he proposes living and working with his brother if he is allowed to stay in Australia. Mr Tran spoke with his mother over the telephone while he was in prison but on an infrequent basis. He proposes to work and help support his mother financially.
38. Mr Tran gave evidence that he had no family or close friends in Vietnam, did not have a good understanding of the country or the culture and would have nowhere to live if he was forced to return to Vietnam. Mr Tran was questioned on whether he had a girlfriend in Vietnam. Mr Tran said he had a girlfriend in Vietnam before he went to prison but she had not returned his telephone calls and he had stopped trying to speak with her about six weeks before the hearing.
39. Mr Tran had a troubled youth and gave evidence that he felt pressured by his family to “meet the high standards set by his brothers”. By the time he was 17 years old, he starting rebelling, left school, started taking drug and moved out of home. He lost contact with his family for a number of years and his criminal offending commenced a few months after he turned 17. He used drugs when he felt down but denies he was addicted and said he stopped using drugs from about 2001. This is inconsistent with information he apparently provided to Psychologist, Mr Mark Howard, for the purposes of his sentencing hearing before Judge Sweeney on 18 July 2008. The Court was provided with a report from Mr Howard and according to Judge Sweeney, “Mr Tran had a long heroin addiction and when in 2004/2005 he overcame his heroin addiction by going ‘cold turkey’, to use his words, he then replaced that addiction with a gambling addiction”.
40. Mr Tran’s evidence was also inconsistent with information he reportedly provided to the Probation and Parole Service for his Pre Sentencing Report dated 20 March 2008 and his Pre Release Report dated 5 May 2011. In the Pre Sentencing Report it is noted that Mr Tran stated “his offending behaviour related to his thirteen year drug addiction and gambling problem”. In the Pre Release Report it is noted that Mr Tran advised that “he has a history of illicit substance abuse and gambling addiction which commenced from the age of twenty two”. While the second Report states a later period for the commencement his drug taking and addiction, it is clear from both Reports that Mr Tran admitted to drug addiction. This was taken into account by Judge Sweeney in his sentencing decision, who observed as follows:
“I note that Mr Tran does have a lengthy record dating back to 1995 of using, possessing and trafficking heroin, for which he had served some terms of imprisonment up to eight months long, and offences of dishonesty. All of those offences are consistent with a person having the drug addiction which Mr Tran has disclosed, but I think it is one thing to supply or traffic small amount of heroin, which would seem to be indicated by the sentences imposed, when one is an addict, and a different thing to organise an importation.”
41. It is unclear why Mr Tran has denied a history of drug addiction when he has previously admitted to this. He was questioned at length on this issue by the Tribunal, his Counsel and the lawyer for the Minister but continued to deny the addiction, even though it may have been relevant, as a factor in his favour, to explain his criminal offending. It is possible he was ashamed to admit the drug addiction and there are references in both Reports to the fact he did not want to contact his family at the time of sentencing because he had “brought shame on the family”. On balance, I am satisfied that Mr Tran had a drug addiction for a number of years in his late teens until about his mid 20s that lead to his history of criminal offending from 1995 until late 2003. Thereafter, it appears he developed a gambling addiction, which lead to his most serious criminal conviction in July 2008 of importing heroin in a marketable quantity.
42. Mr Tran told the Tribunal he regrets his past and said he made many mistakes when he was young. He is more thoughtful now and will no longer take drugs or gamble. While he was in prison he passed all random drug tests on 7 October 2008, 5 April 2009, 7 June 2010, 30 August 2010, 22 March 2011 and 4 April 2011. According to the Pre Release Report, Mr Tran incurred two minor misconducts infringements while in custody, namely failing to comply with the Centre Routine on 19 November 2009 and disobeying a direction on 1 September 2009. It was also reported that Mr Tran completed 11 sessions of a TAFE Welding course, participated in English Skills classes and completed the Getting Smart Addiction program in August 2010 and further vocational training programs in June 2009 and April 2010. Relevantly, the author of the Report observed that Mr Tran “appears to have used his time in custody constructively, via participation in offence targeted programs and continual satisfactory work and prison performance reports”. He was assessed as suitable for a “medium level of intervention” by the Probation and Parole Service “commensurate with the assessed risk and identified criminogenic needs”.
43. Mr Phillip Tran gave evidence. He told the Tribunal he is close to Mr Tran, although he did not speak to him much while he was in prison. He considers his uncle to be “a very caring and loving man, who found it hard to express his feelings”. His uncle has done “many things” for him, although he agreed he is not financially or otherwise dependent on Mr Tran. Mr Jamie Tran gave similar evidence. He also told the Tribunal it was proposed Mr Tran, his uncle, would live with him, his brother and father and work in the family business. Mr Trang Van Tran gave evidence that he would offer his brother full time employment in the family insulation business and provide him with support and guidance. Mr Tran was a good worker and he believed he should be given a chance to become a “useful member of society”. He spoke to his brother regularly over the telephone when he was in prison, usually every two months, but this had become more frequent in the last year. It was proposed that Mr Tran live with him and his sons.
44. Mrs Nguyen told the Tribunal that she wanted her son to stay in Australia. When he was in prison, Mr Tran spoke more regularly with her eldest son, Mr Trang Van Tran, but she also spoke to Mr Tran over the telephone every few months. She agreed Mr Tran had not supported her financially in the past but she was hoping he would assist her in the future if he was allowed to stay in Australia.
45. There is evidence that Mr Tran’s application to transfer his parole to Victoria was conditionally approved on 16 June 2011, with the conditions being that Mr Tran is required to take any action necessary to have an outstanding warrant executed and he must be willing to engage in interventions to address his gambling addiction and substance abuse issues. There is no evidence about what the outstanding warrant relates to and it is not referred to in the information provided by the Victoria Police in answer to a subpoena issued by the Minister’s lawyers about Mr Tran’s criminal history. It is possible the warrant relates to either a minor matter or Mr Tran’s sentence, and any ongoing parole conditions, in respect of his conviction in March 2007. Mr Tran was subsequently arrested in New South Wales in August 2007 and was held in custody from 26 August 2007. If there were conditions in Victoria, he would have been unable to comply. While this is only speculation, it is clear the outstanding warrant cannot relate to recent conduct as Mr Tran has been in prison since August 2007. It is unlikely to relate any offences other than those described in the information provided by the Victoria Police, given the subpoena requested a “complete set of records” for Mr Tran, including his criminal history.
PROTECTION OF THE AUSTRALIAN COMMUNITY
46. Direction No 41 identifies two factors relevant to protection of the Australian community: the seriousness and nature of the relevant conduct, and the risk the conduct may be repeated. Paragraph 10.1.1(1) of Direction 41 states that crimes involving violence, or the threat of violence, are of special concern to the welfare and safety of the Australian community. Paragraph 10.1.1(2) lists examples of categories of offences and conduct that are considered to be serious. Mr Tran contends that he has not committed crimes of violence and his crimes, with the exception of the last offence, were minor drug or driving related offences. There are some offences of theft and dishonesty, but most of his offences attracted relatively short custodial sentences. There was one assault charge (assault to prevent lawful detention) in 1999 when he was about 21 years old but he denies he was violent. It is submitted that these offences are not in the category of “serious” offences identified in the Direction, although it is accepted that his last offence of importing is specifically listed in paragraph 10.1.1(2)(f) as an example of a serious offence.
47. The lawyers for the Minister contend that Mr Tran’s numerous convictions for “trafficking” also fall within this paragraph, which provides that offences for “the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs” are considered to be serious for the purposes of assessing the level of risk or harm to the community of a person continuing to stay in Australia. Mr Tran was been convicted of numerous trafficking and possession offences between 1995 until 2003. Sub-paragraph (2)(f) refers to possession and trafficking of “trafficable or commercial quantities of illicit drugs”. There is no definition for these terms in the Direction. Under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), to “traffick” includes to “sell, exchange, agree to sell, offer for sale or have in possession for sale a drug of dependence”. A commercial quantity of heroin is 250 grams and a trafficable quantity of heroin is 3 grams. Mr Tran was not convicted of trafficking a commercial quantity of heroin but was presumably convicted of trafficking at least a “trafficable quantity”. As such, his offences, especially the last conviction for importing, should be considered serious.
48. The categorisation of the offence is not the only matter to be considered and paragraph 10.1.1(3) of the Direction provides:
“(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community. Due regard must be given to the extent of the person's criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.”
49. Since Mr Tran has been living in Australia he has been charged with approximately 40 criminal offences. In the period from 1995 to 2003, he reoffended within months of leaving prison on at least four occasions. Of particular concern is that Mr Tran failed to appear to answer charges and breached bail conditions on six of the twelve times he came before the courts during this period. While most of Mr Tran’s convictions in this early period attracted short sentences, the most recent sentence imposed was six years. This is a lengthy sentence and is indicative of the seriousness of Mr Tran’s conduct to the community.
50. Under paragraph 10.1.1(4)(b) of Direction 41 any mitigating factors should be taken into account when considering the seriousness of the conduct. Mr Tran’s habitual offending until late 2003 is serious but can be at least partially explained by his youth, apparent lack of maturity and judgement, and his drug addiction. He was 17 when he first commenced offending and his reckless behaviour, evidenced by his failure to appear at court hearings, continued until he was 25 years old. The Minister contends drug addiction should not be taken into account as a mitigating factor when considering the seriousness of Mr Tran’s conduct. I do not agree. Criminal courts take these matters into account in sentencing, as is clear from the decision of Judge Sweeney, and in my view it is equally appropriate to take into account any addiction when assessing conduct for the purposes of exercising discretion under s 501 of the Act. It is also relevant to consider that Mr Tran did not offend for over three years but committed two offences, around the same time, when he was under pressure to repay gambling debts. Mr Tran’s gambling and drug addictions were accepted as relevant considerations by Judge Sweeney in his sentencing remarks. While these addictions do not excuse Mr Tran’s conduct, they provide context for his poor criminal history.
51. Notwithstanding this, I am satisfied that the nature and extent of Mr Tran’s misconduct since he has been living in Australia is serious.
52. Paragraph 10.1.2 of Direction 41 provides guidance as to the factors to be considered when assessing the risk of any reoffending. The person's “previous general conduct and total criminal history are to be considered highly relevant” (10.1.2(1)) and factors such as the recent history of convictions, evidence of rehabilitation already achieved or evidence of breach of previous orders are relevant to such an assessment (10.1.2(2)).
53. Mr Tran’s criminal history does not suggest there is a pattern of increasing risk he will reoffend. Even though Mr Tran’s last conviction was the most serious, there was a long period of compliance. The reason for his reoffending in March 2007 was not explained during the hearing, although it is clear his conviction in 2008 resulted from pressure to repay money to debt collectors. He has been assessed by the Probation and Parole Service as a medium risk and has achieved some level of rehabilitation while in custody, as evidenced by the Pre Release Report. Mr Tran has attended numerous courses to improve his skills while in prison, he has passed drug tests and his record of compliance while in custody is good, with only two minor infringements. This is a significant improvement given Mr Tran previously breached court orders and was arrested six times in his late teens and early 20s to enforce the breach. His resolve to keep out of trouble has not yet been tested but Mr Tran has strong support from his family, particularly his older brother Mr Trang Van Tran. There is a risk he will reoffend but that risk is not high.
54. Having regard to the matters referred to above, I find that the protection of the Australian community weighs in favour of cancelling Mr Tran's visa but in my view the case is finely balanced. His misconduct was serious and repeated and relate to offences which are considered to be serious, exposing the Australian community to risk of harm. On the other hand, the offences, with the exception of his last conviction, were at the lower end of the scale of criminality. There are mitigating circumstances to explain his conduct but, more importantly, to suggest these offences will not be repeated. It is also relevant that there is independent evidence of his rehabilitation and good behaviour.
WHETHER THE PERSON WAS A MINOR WHEN THEY BEGAN LIVING IN AUSTRALIA
55. Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if a person was a minor when they began living in Australia and spent their formative years in Australia. However, less weight should be given if the person began living in Australia when they were close to attaining adulthood.
56. Mr Tran arrived in Australia in 1993 within four months of turning 15 years old and has lived in Australia for 18 years. He has strong family ties in Australia, finished his schooling here and spent much of his teenage years and young working life in Australia. He has returned to Vietnam three times, once in 1998 and twice in 2007 (relating to the commission of the importing offence). Mr Tran says, and I accept, that he has no real links to Vietnam.
57. I find that this factor weighs against cancelling Mr Tran’s visa.
LENGTH OF TIME LIVING IN AUSTRALIA
58. Direction No 41 directs favourable consideration to lengthy residence in Australia but expressly limits such consideration to ordinary residence “prior to engaging in criminal activity or activity that bears negatively on their character”.
59. The evidence is that Mr Tran committed criminal offences within two years of arriving in Australia and has spent approximately six of his eighteen years in Australia in prison. The Minister contends that this should weigh in favour of cancelling Mr Tran’s visa and referred to the decision of Rares J in Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 397:
“...commonsense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that the person be allowed to remain here with a visa granted by the government of the country under the Act.
60. Mr Tran was young when he arrived in Australia and was still a minor when he commenced offending. There is evidence he felt pressured, rebelled against his family, left home and began taking drugs, which lead to his offending. This is not a case where a mature person deliberately embarked on criminal activity soon after arriving in Australia and this case can be distinguished from the facts in Rosson. It is no doubt difficult for a non-English speaking teenager to migrate to another country, which may explain his early misconduct. In these circumstances, I do not accept this should weigh against Mr Tran but nonetheless find that little weight should be given to the length of time Mr Tran has lived in Australia.
OTHER CONSIDERATIONS
61. The other considerations relevant to Mr Tran are: family ties and the extent of disruption to Mr Tran’s family; Mr Tran’s links to Vietnam and hardship likely to be experienced by Mr Tran or his family living in Australia.
62. There is evidence that Mr Tran has strong ties with some of his family and his brother, nephews and mother would miss him if his visa was cancelled and he was forced to return to Vietnam. They do not rely on him for financial support and the time Mr Tran has spent away from the family in recent years has resulted in the family adjusting to his absence. Mrs Nguyen travels to Vietnam regularly and could visit him there and while Mr Trang Van Tran and his sons all agreed they could travel to Vietnam, Mr Phillip Tran told the Tribunal that the cost and time away from the family business would make visiting Mr Tran difficult. The Minister contends the disruption to Mr Tran’s family would be minimal. Mr Tran contends his family would lose the potential for his financial support and the close bond between him and his nephews, brother and mother would be broken.
63. I am satisfied there is a close bond between Mr Tran and certain members of his family and that this bond will be necessarily disrupted if Mr Tran’s visa is cancelled. I am also satisfied that Mr Tran does not have close links to Vietnam, particularly as all his immediate and most of his extended family now live in Australia. He speaks Vietnamese but has never worked there and is unaccustomed to the country and culture. I accept he would face hardship if he were to return.
64. These factors weigh against cancelling Mr Tran’s visa, although I accept they should be afforded less weight than the primary considerations.
CONCLUSIONS
65. This is not a case where the factors weighing in favour of the protection of Australian community are overwhelming or compelling. While there is a risk Mr Tran will reoffend, the risk has been independently assessed as requiring a medium level of intervention. His offences were mostly at the lower end of the scale in seriousness and there is some evidence of mitigating circumstances. Importantly, Mr Tran has family support and there is some independent evidence of rehabilitation.
66. The fact that he was a minor when he arrived is significant and weighs in his favour, as does the disruption to some members of his family and hardship he will face if he must return to Vietnam.
67. In his statement to the Tribunal, Mr Tran requested that he be given “one more opportunity” to retain his visa. Having taken into account the primary and other considerations, it is my view Mr Tran should be given this opportunity. I find that the discretion should be exercised in Mr Tran’s favour and I set aside the decision of the Minister.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.
Signed: ................[sgd].......................
K Lynch, AssociateDates of Hearing 22 & 23 September 2011
Date of Decision 11 October 2011Counsel for the Applicant Mr B Young
Solicitor for the Respondent Ms L Weston, Minter Ellison.
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