Tran and Minister for Immigration and Citizenship

[2011] AATA 265

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 265

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0441

GENERAL ADMINISTRATIVE DIVISION        )

Re             Phong Hoang TRAN

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalMr RP Handley, Deputy President

Date21 April 2011

PlaceSydney

DecisionThe decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Tran’s favour so as not to cancel his visa.

………………[sgd]…………...

Mr RP Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – extensive criminal history related to heroin addiction – prospects of rehabilitation – other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person - whether the person has been formally advised in the past of conduct that brought the person within deportation provisions - decision under review set aside

RELEVANT ACT

Migration Act 1958 (Cth) (the Act): s 501

CITATIONS

Re Say and Minister for Immigration and Multicultural Affairs (2006) 91 ALD 212; [2006] AATA 454

Rosson v Minister for Immigration and Citizenship [2011] FCA 194

OTHER AUTHORITIES

Direction [no. 41] - Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

21 April 2011 Mr RP Handley, Deputy President

1.      Mr Tran has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Tran’s visa on the ground that he does not pass the character test.

BACKGROUND

2.      Mr Tran was born in Vietnam in November 1976 and is a Vietnamese citizen.  He first arrived in Australia on 25 May 1992, aged 15, sponsored by his mother.  Since then, he has returned to Vietnam on two occasions, in 2004/2005 for about seven months, and most recently, in December 2007/January 2008, for about four weeks, returning as the holder of a Class BB, Subclass 155, Five Year Resident Return visa.

3.      Mr Tran has an extensive criminal history dating from 1995 to 2010, including convictions for possession of a prohibited drug, supply of a prohibited drug, goods in custody, stealing, shoplifting, larceny and assault.  Mr Tran has served a number of sentences of up to and including 12 months imprisonment.  The longest prison sentence imposed (on 28 April 1999) was one of 16 months for “supply prohibited drug”.  Most recently, he was sentenced to 15 months imprisonment for “contravene prohibition/restriction in AVO (DV)”.  The non-parole period in respect of this and other offences expired on 24 November 2010 and Mr Tran is currently being held in immigration detention at Villawood. 

4.      On 10 October 2008, the Department of Immigration and Citizenship (the Department) sent Mr Tran a formal counselling letter notifying him that any further convictions could lead to consideration being given to the cancellation of his visa.  Mr Tran acknowledged receipt of this letter on 15 October 2008.  Since then, he has committed further offences.  He had previously received two similar letters, dated 17 July 2000 and 31 August 2006.

5.      On 22 July 2010, the Department notified Mr Tran that cancellation of his visa was to be considered and inviting him to make submissions.  Mr Tran responded by letter dated 15 August 2010.  He was interviewed by a departmental officer on 6 September 2010.  On 18 October 2010, a delegate of the Minister decided to cancel Mr Tran’s visa on the ground that he was not satisfied that Mr Tran passed the ‘character test’.  On 9 February 2011, Mr Tran was notified of the cancellation of his visa and signed an acknowledgement of receipt of the notice on that day.  On 10 February 2011, Mr Tran applied to the Tribunal for a review of this decision.

6.      The Tribunal was provided with the following statements/letters of support for Mr Tran from family members and a friend:

·a statement from his mother, dated 28 March 2011

·two undated statements from his younger brother

·an undated letter of support from his uncle

·an undated letter of support from his grandmother

·an undated letter of support from a family friend

His mother, brother and the family friend gave evidence at the hearing.

RELEVANT LAW AND POLICY

7. Section 501(2) of the Migration Act1958 (Cth) (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”. Section 501(6) 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, or to two or more terms of imprisonment where the total of those terms is two years or more.

8.      Mr Tran has been sentenced to three terms of imprisonment of 12 months or more, including his most recent sentence of 15 months imprisonment.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Tran’s visa.  In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).  Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

9.      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).

10.     These considerations are elaborated on by a range of factors to which regard must be had.  There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations.  Those ‘other’ considerations are discussed below.

Primary Considerations

11.     The ‘primary’ considerations relevant in Mr Tran’s case are the protection of the Australian community, the fact that he was a minor when he began living in Australia, the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity, and the best interests of relevant children.  These considerations are addressed below.

the protection of the australian community

12.     Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

The seriousness of the conduct

13.     With regard to the seriousness of Mr Tran’s conduct, the Tribunal notes that among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41 are assault, robbery and drug offences.  Mr Tran has convictions for assault occasioning actual bodily harm (6 July 1999), common assault (27 October 2009 and 4 June 2010), larceny (4 December 1997, 10 February 2006, and 17 September 2009) and shoplifting (24 June 2005, 10 February 2006, 5 August 2008, 28 August 2008), possession of a prohibited drug (nine convictions) and supplying a prohibited drug (six convictions).

14.     Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence.  Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.

15.     Mr Tran has been convicted of a significant number of offences.  I am satisfied from his evidence and criminal history and the files produced in response to summonses issued to the NSW Police, NSW Department of Corrective Services and Parramatta Drug Court that most of his offending is associated with his drug use.  Mr Tran told me that he became addicted to heroin at the age of 18 and started getting into trouble because he needed money to support his drug habit.  His history of convictions from November 1995 confirms this.  His first conviction on 3 November 1995 was for 11 counts of supplying heroin.  There followed numerous convictions for possession of a prohibited drug and a further five convictions for ‘supply’, the last being on 21 October 2002. 

16.     Mr Tran said there have been several periods when he has been free of drugs: between about 2002 and 2005, and between 2006 and 2008.  He has also now not taken illicit drugs for more than 12 months having been on a methadone program.  A letter from the Health Services Manager at Villawood Immigration Detention Centre dated 4 April 2011 confirms that when Mr Tran was released from prison on 28 November 2010 and taken into immigration detention at Villawood, he was on 10ml/50mg of methadone and he has since then voluntarily reduced this to 2ml/10mg of methadone.  He said he is determined to be free of drugs.

17.     Mr Tran’s criminal history confirms that he was not charged with any criminal offence after July 2001 and until May 2005, and after December 2005 and until August 2008.  He said he started a Drug Court program in 2001, completed a six‑month Narcotics Anonymous program and a rehabilitation program at Redfern, and stayed away from the areas he used to frequent.  He flew to Vietnam on 26 July 2004 in order to get married to a woman he had met through his mother.  They got married and lived together for about six months in her parents’ house in Vietnam.  Mr Tran said he loved her but it became clear that she did not really love him, and then he had problems with her parents.  He and his wife split up and he lived in a hotel for a month before returning to Australia on 28 February 2005.

18.     Mr Tran said after he returned to Australia he nearly killed himself and did stupid things in order to try and forget his problems.  This included starting to use heroin again.  As a result of a number of convictions on 10 February 2006, he was again sent to prison.  Back in prison, he was put on the methadone program and, on his release on parole in August 2006, he commenced a one‑year residential rehabilitation program in Redfern before moving to a Mission Australia house for three months. 

19.     Mr Tran said that in December 2007 his mother and stepfather paid for him to fly to Vietnam for a cousin’s wedding.  He departed Australia on 12 December 2007.  In Vietnam, he and his grandmother (who had also flown to Vietnam for the wedding) stayed with his uncle.  His uncle is very poor and Mr Tran provided him with money to pay for his keep.  Mr Tran said that while he was in Vietnam, he had another short relationship with a woman he met there but, again, this did not work out.  He returned to Australia on 9 January 2008 and isolated himself and did not talk to anyone for three or four weeks and then started using heroin again.

20.     On 5 August 2008, Mr Tran was convicted of shoplifting and given a 12‑month suspended sentence on entering into a bond and subject to supervision by the NSW Probation and Parole Service.  After another shoplifting conviction in August 2008, he was subject to a call up on his bond and imprisoned until 20 February 2009 when he was released on parole.  Then on 17 September 2009, Mr Tran was convicted of larceny and sentenced to nine months imprisonment suspended on his entering into a Drug Court program.  He said he did his best to comply with the program and not reoffend but he had problems with his girlfriend.  (The case note reports for Mr Tran maintained by the Department of Corrective Services during his undertaking the Drug Court program indicate that he made genuine efforts to comply with the program (during which he appears to have been on buprenorphine), despite some relapses into heroin use which he admitted to Drug Court probation and parole officers.)  Mr Tran told me he relapsed three or four times during the course of the program.

21.     Mr Tran described the incidents with his girlfriend on 14 October 2009 and 20 December 2009 that led to his convictions for common assault.  He said that he lived with his girlfriend for about a year on and off during which they regularly had arguments, and the first conviction, on 27 October 2009, arose from his pulling her bag and her falling to the floor.  He also threw a shoe which hit a wall.  He was charged with common assault.  His girlfriend went to court with him and he was given a 12‑month good behaviour bond, the terms of which he said he did not really understand.  He was also issued with an Apprehended Violence Order (AVO).  Notwithstanding this, his girlfriend continued to live with him.  The second incident arose out of his being upset by her not attending a birthday party which was held at a Cabramatta club.  Mr Tran said he had been drinking and went to her house to find out why she had not come to the party.  She was yelling and swearing and he became angry and slapped her face (he denied punching her as was alleged and referred to by the sentencing judge).  On leaving, he went around to the back of the house and threw a brick through a rear window.  Mr Tran said that after this incident, he used drugs for about a week.

22.     The sentencing remarks of Judge Barnett in the Drug Court of NSW on 4 June 2010, indicate that Mr Tran pleaded guilty to the charges of common assault, breach of the AVO and destroy or damage property.  Judge Barnet noted that while Mr Tran was undertaking the Drug Court program, which he was on for seven and a half months, sanctions for Mr Tran’s relapses were waived because of his substantial compliance with the program and because he substantially reduced his drug taking.  The Judge sentenced Mr Tran to a total of 15 months imprisonment commencing on 25 April 2010, with release on supervised parole on 24 November 2010.

23.     The Immigration Report prepared by the NSW Probation and Parole Service dated 20 October 2010 noted that Mr Tran had incurred four institutional misconduct charges during the periods spent in prison (since 2008): 1 September 2009 – “Fail Comply with Correctional Centre Routine”; 10 August 2010 – “Possess/Create Prohibited Goods”; 4 September 2010 – “Possess Offensive Weapon/Instrument”; and 8 October 2010 – “Possess Drug”. The Report states that Mr Tran had been subjected to targeted urine analysis testing on only one occasion, on 7 August 2010, which returned a negative result for illicit substance use.

24.     There can be no question that Mr Tran has a significant criminal history.  As stated above, most of Mr Tran’s offending appears to have been associated with drug use and, when he has not been using drugs, it appears he has not offended.  His chronic drug addiction does not in any way excuse his offending but it does assist in explaining it: Re Say and Minister for Immigration and Multicultural Affairs [2006] AATA 454; (2006) 91 ALD 212 at 230. Relapses into drug use since 2005 appear to be associated with adverse events in his life – in particular, problems arising out of his relationships. His two recent convictions for common assault arose out of disputes with his girlfriend and, in the case of the second incident, he was under the influence of alcohol. In my view, his history does not suggest a risk of violence to the wider community.

The risk that the conduct may be repeated

25.     With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Tran’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders. 

26.     I note that Mr Tran has breached judicial orders on a number of occasions, including bail and bond conditions and the conditions of the Drug Court program he undertook in 2009/2010.  Since becoming addicted to heroin, he has had two periods in which, following rehabilitation, he became drug free – in 2002-2004  and 2006-2008.  Moreover, he has now not used illicit drugs since about March 2010 while on a methadone program and has been gradually reducing his dose of methadone with a view to again becoming drug free. 

27.     Mr Tran said he recognises that his criminal record is serious, which he regrets.  In an undertaking to the Department filed on 28 March 2011, he sincerely apologised for the trouble he has caused over the years and said “if I committed again any act in breach of the law I would accept all the punishments that you would impose on me”.  He told me that he will not go back to drugs.  He knows he is able to stay clean.  He believes his attitude is different this time and he has to turn his life around.  He acknowledged that he has promised not to reoffend in the past – for example, in his letter to the Department dated 11 June 2006.  However, being in immigration detention at Villawood, he is faced with the reality of deportation every day.  He believes he can stay off heroin both for himself and his family.  He will look after himself and keep going to counselling.  He will live with his mother if he is released from detention.  She is a good influence on him.  She follows a strict Buddhist regime involving a vegetarian diet with no smoking or drinking alcohol, and practising meditation. 

28.     Mr Tran  said that during the periods he spent living with his mother in the past, he never used drugs at her house although he acknowledged sometimes having gone out with his friends and “used”.  He did not live with his mother on returning from Vietnam in February 2005 because his mother and step-father were angry with him after the failure of his marriage.  When he was released on parole in February 2009, he went to live with his uncle: he did not want to live with his mother because he was still smoking, drinking and eating meat and he wanted to live with his girlfriend, who moved in with him at his uncle’s house. 

29.     Mr Tran said he will now abide by his mother’s rules.  He recognises the worry he has caused her.  She is also not well and her husband’s imprisonment and their separation for more than 12 months have affected her badly.  He also wants to maintain contact with his younger brother, aged 16, who lives with his mother and with whom he has re-established contact since being in Villawood.  He will take care of his mother and younger brother and will focus on getting off methadone.  He will also clean himself up, play sport and not isolate himself. 

30.     I note Mr Tran’s evidence that in the past he worked for his stepfather doing building type work, including as a tiler.  In his statement faxed from Villawood on 7 April 2011, Mr Tran said he will undertake the ‘first steps’ program under the aegis of Centrelink so that he can start working again.

31.     Weighing up the evidence before the Tribunal, Mr Tran’s history clearly indicates that while he is now nearly free of drugs, there is a risk of his relapsing into drug use as he has in the past when confronted by relationship problems.  However, his evidence to the Tribunal and that of his family suggests that he is now more mature and I am satisfied that he is strongly motivated to turn his life around.  He has a supportive family and if he lives with his mother and brother, this will reduce the possibility of relapse.  Mr Tran’s criminal history is largely associated with his drug use and, if he can stay free of drugs, the risk of his reoffending is low.  With regard to the two recent instances of common assault, I am satisfied that these were associated with what, on his account, appears to have been a somewhat stormy relationship with his former girlfriend and I am prepared to accept that these do not reflect his general conduct. 

32.     In my view, the overall risk Mr Tran poses to the Australian community is low.

whether a minor on beginning to live in australia

33.     The second primary consideration relevant in Mr Tran’s case relates to his being a minor when he first commenced residence in Australia.  Direction No 41, paragraph 10.2(1) states:

If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

34.     Mr Tran arrived in Australia sponsored by his mother in May 1992, when he was aged 15.  I note that a Probation and Parole Service Pre-Sentence Report dated 8 February 2006 records Mr Tran having said that his father died when he was aged five, and that his mother placed him in the care of his maternal grandmother at the age of six, remarried and came to Australia in 1983.  Mr Tran has returned to Vietnam on two occasions since arriving and has now lived in Australia for 19 years.  His close family - his mother and brother - are in Australia, as well as his grandmother and other relations. 

35.     Thus, I am satisfied that Mr Tran has close ties to the Australian community as a result of his having lived here for 19 years and because of the presence of his immediate family here.  This primary consideration therefore weighs against cancellation of Mr Tran’s visa.

length of time ordinarily resident

36.     The third primary consideration relevant in Mr Tran’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41.  This states that “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”. 

37.     Mr Tran was first charged on 31 July 1995 (with 11 counts of ‘Supply Prohibited Drug (Heroin)’) when he was aged 18 and after he had been resident in Australia for three years.  As stated above, I am satisfied that his offending was associated with his need to fund his chronic addiction to heroin. 

38.     Ms Collins, for the Minister, referred me to the recent Federal Court decision in Rosson v Minister for Immigration and Citizenship [2011] FCA 194, at [23], where Rares J said that the fact that a person has been in Australia for a short period prior to offending could be treated as an unfavourable rather than a neutral consideration. However, I agree with Ms Mahmoud, for Mr Tran, that the facts of Mr Tran’s case are materially different. Mr Rosson was aged 35 on arrival in Australia and first offended within two years of arrival. Mr Tran was still a minor on arrival and his first offence was three years after arrival and, while not excusing his behaviour, associated with the need to fund his addiction to heroin. In my view, the third primary consideration should not weigh heavily against Mr Tran.

best interests of the children

39.     Direction No 41 sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.

40.     Mr Tran does not have any children but he has a younger brother, whom I will refer to as ‘S’, now aged 16, who lives with his mother.  Some of the above factors are not relevant in the case of Mr Tran and his brother.  S provided undated statements filed on 8 April 2011 and 28 March 2011 and gave evidence at the hearing.  He described his relationship with Mr Tran as “close”, although he expressed annoyance and disappointment at the trouble into which Mr Tran has got himself.  S said he was too young to understand most of what happened at the time.  Currently, they stay in touch via Facebook although S has been to visit Mr Tran at Villawood.  S had no contact with Mr Tran while he was in prison, and before Mr Tran went to prison and while he was living with their uncle, they would see each other briefly about once a week.

41.     S said his father being imprisoned in mid-2010 “has put a massive strain on the family”.  He wants his brother to live with him and their mother to help look after her.  In his earlier statement, S said:

Our mother has been ill lately and has just had an operation for her illness and needs my brother to act as carer for her.  I am too young to have this responsibility and it scares me what could happen.

In his later statement, S said:

There’d be more support for my mother, and it would make her happier if he were around. If he leaves, she’ll be stressed and depressed. I don’t want him to go back to Vietnam.

42.     S said that caring for his mother is not easy because he can not speak Vietnamese very well and his mother only speaks Vietnamese: “Sometimes I want to talk to her but don’t know what to say.  Phong can speak Vietnamese much better than me and he could speak to her more than I can.”  S said he cannot stay at home all the time to look after his mother.  He needs “to get out to de-stress”.

43.     S said Mr Tran has told him not to touch drugs and he will not follow Mr Tran’s example.  S is currently studying for Year 10 at TAFE and will either go on to study for Years 11 and 12 or he may get a job.  He has the option of a “pick-packing” job. 

44.     In my view, this primary consideration favours Mr Tran’s visa not being cancelled.  The family unit is a small one and both S and their mother need his support, especially in the absence of S’s father who is currently in prison.  Moreover, for S to bear the primary responsibility for supporting his mother in the home is an unduly heavy one for a person of his relatively young age.  If Mr Tran has to return to Vietnam, this is likely to cause their mother further distress which will in turn have an adverse effect on S’s family unit.  It appears unlikely that either S or any other family member would accompany Mr Tran to Vietnam if he has to return there.

Other Considerations

45.     As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations.  Relevant ‘other’ considerations in Mr Tran’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with Vietnam, the hardship that may be experienced by both Mr Tran and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

46.     Mr Tran’s mother, Ms Tran provided a letter of support that the Minster arranged to be translated into English and gave evidence at the hearing.  In her letter, she stated that she recently suffered “broken arteries in the brain” (described by her brother and mother as ‘apoplexy’ (marked loss of bodily function due to cerebral haemorrhage)) and needs Mr Tran to help take care of her and her younger son.  He can help with heavy tasks and he speaks good English.  Ms Tran said she has suffered from depression since she suffered a stroke in November 2003.  A medical assessment for Ms Tran prepared for Housing Pathways NSW by a general practitioner, Dr XH Lin, on 14 March 2011, states that Ms Tran suffers from (1) depression, (2) hypertension, and (3) B12 deficiency.  The overall impact of the conditions is described as ‘moderate’, and the duration as ‘medium’ (2-5 years).

47.     Ms Tran said she cannot remember when she became aware of Mr Tran’s drug problem.  However, she said that over the past two years Mr Tran “has changed a lot”.  He will come and live with her if he is released into the community and has promised that he will follow her regime in her home which involves a vegetarian diet and practising meditation.  He has told her that he will turn his life around.

48.     Ms Tran said her mother (Mr Tran’s grandmother), who has provided an undated letter of support, lives in Marrickville.  Ms Tran does not see her very often because Ms Tran cannot use public transport or drive.  She sees her brother (Mr Tran’s uncle), who has provided a letter of support, quite often.  She provides vegetarian food for both of them from time to time.  Ms Tran said she has other siblings in Sydney who come to see her from time to time.

49.     Ms Tran said she has been through a lot of bad times including the situation with her husband, but her lifestyle helps her a lot.  Her friend, Ms Nguyen, follows the same lifestyle as Ms Tran.  They have known each other for about 15 years.  Ms Nguyen speaks both Vietnamese and English.

50.     Ms Tran’s friend, Ms Nguyen, provided a letter of support filed on 4 April 2011.  She said Ms Tran was miserable and crying when they discussed her son’s problems and she tried to comfort her.  Ms Nguyen stated that she has known Mr Tran for about 10 years.  She is aware of his drug problems and convictions although not in detail.  She thinks he has changed: he is more mature and feels more for his mother and brother and wants to turn his life around.  He has a strong faith which will help him in this.  Ms Nguyen said she has visited Mr Tran at Villawood with his mother and they discussed these matters. 

51.     Mr Tran’s grandmother and uncle provided letters of support in Vietnamese filed on 4 April 2011 that the Minister arranged to be translated into English.  His grandmother asked that her grandson be allowed to return to his family to take care of his mother.  She said he has become a more mature and better person than before and has promised God that he will be worthy of being an Australian citizen.  Mr Tran’s uncle said Mr Tran’s mother needs her son to take care of her.  If Mr Tran was sent back to Vietnam she would be shocked and suffer a lot.

52.     I accept that that if Mr Tran is returned to Vietnam this will cause both him and his immediate family, in particular his mother and younger brother, significant hardship by reason of their separation.  It will be more difficult to maintain their relationship if he is in Vietnam although there is no reason for them not being able to maintain contact by telephone and, in the case of his brother, by other electronic means such as email and Facebook. 

53.     I note that Mr Tran has had some contact with his extended family in Vietnam in the course of two visits there but he told me that his two uncles there are poor and would not be able to support him.  One has a big family and no job.  The other lives on a farm an hour out of the city.  Mr Tran has provided support for them from Australia and also when he visited them.  If he returned to Vietnam he would have no money and no means of support.  However, it appears that he would not experience any language or cultural barriers.

54.     Mr Tran is now aged 34 and, apart from his addiction to heroin, appears to be in good health.  However, I note that the Department of Corrective Services records contain a number of references to the risk of self-harm although also recording that Mr Tran has denied this on a number of occasions. 

55.     Mr Tran has received formal warnings from the Department on three occasions.  On 17 July 2000, he was warned that any further reoffending would lead to the question of his deportation being reconsidered.  On 31 August 2006, and again on 15 October 2008, he was warned that conviction of any further offences would result in the cancellation of his visa being reconsidered.  Mr Tran said he did not really understand the significance of the warning he received in 2000.  In 2006, he understood the warning but others in prison told him not to worry, that it was not that serious.  He acknowledged that he had written a letter to the Department in response from Long Bay prison, dated 11 June 2006, in which he declared that “I will be a model citizen and will never reoffend”.  Mr Tran said after his release from prison in 2006, he did try not to reoffend and I note that he was ‘clean’ between 2006 and early 2008, when he relapsed following his return from Vietnam and his failed relationship.  I also accept that he made a genuine effort to comply with the Drug Court program in late 2009 - as Judge Barnet acknowledged in sentencing Mr Tran in June 2010 - until he had another relationship crisis with his then girlfriend.

56.     Weighing up the relevant ‘primary considerations’, I am not satisfied that Mr Tran’s release from detention poses a significant risk to the Australian community.  If he can stay off drugs, the risk of his reoffending is low, and he seems better equipped now than formerly and is more motivated to follow through with remaining drug free, especially with the support of his family.  I note that the two recent incidents involving assault were in a domestic situation. 

57.     With regard to the second primary consideration, the fact that he began living in Australia as a minor favours his visa not being cancelled.  The third primary consideration, having regard to the length of time between his becoming resident in Australia and his first misconduct, approximates, in my view, to a neutral consideration as explained above.  With regard to the fourth consideration, the best interests of any relevant children, I accept that it is in the best interests of Mr Tran’s brother for Mr Tran to remain in Australia. 

58.     With regard to the ‘other considerations’, I am satisfied that Mr Tran’s return to Vietnam would cause hardship to both him and his immediate family in Australia, particularly to his mother and brother.  I accept that his mother is unwell and needs his support.  I also note that if Mr Tran has to return to Vietnam, he has no immediate means of support there.  Lastly, I have noted the three formal warnings Mr Tran received from the Department and his attempts at rehabilitation.

59. Having had regard to both the primary and other considerations, my overall conclusion is that the discretion in s 501(2) of the Act should be exercised in Mr Tran’s favour so as not to cancel his visa and that he should be permitted to remain in Australia. He is fully aware that any further misconduct on his part is likely to result in a different outcome.

DECISION

60. The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Tran’s favour so as not to cancel his visa.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

Signed:   ………[sgd]..................................................................

A Veness, Associate

Date of Hearing:  13 April 2011
Date of Decision:  21 April 2011
Applicant counsel:                   Ms S Mahmoud
Respondent representative:   Ms A Collins, Clayton Utz