Tran and Minister for Immigration and Citizenship

[2008] AATA 82

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5865

GENERAL ADMINISTRATIVE DIVISION        )

Re             Cam Tu TRAN

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date1 February 2008

PlaceSydney

DecisionThe decision under review is affirmed.

……………[sgd]……………………...

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – applicant’s visa cancelled by delegate for failing to pass the character test – applicant has an extensive criminal record and a long history of offences in correctional facilities – applicant assessed as being a high risk of re-offending – applicant has a daughter – best interests of the child considered – not clear on the evidence that the applicant remaining in Australia is in the child’s best interests – applicant would experience some hardship in re-adapting to life in Vietnam – other considerations are outweighed by the primary considerations in this case – decision under review is affirmed.

…

RELEVANT ACT/S:

Migration Act 1958: ss 499, 500, 501

…

CITATIONS

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Al-Kateb v Godwin (2004) 219 CLR 562

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

…

OTHER AUTHORITIES

Direction No 21

…

REASONS FOR DECISION

1 February 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Mr Cam Tu Tran was born in Vietnam on 15 October 1976 and is a citizen of that country.  He first arrived in Australia on 28 March 1993, travelling alone, at the age of 16 years.  He has remained in Australia since, except for a three-month visit to Vietnam in 1995.

2.      Between February 1995 and October 2006, he accumulated a lengthy record of criminal convictions and was sentenced to terms of imprisonment on no fewer than 15 separate occasions.  His custodial sentences include three years imposed on 13 October 2000 for robbery in company, 16 months imposed on 16 June 2003 for supplying heroin and 20 months on 17 January 2005, again for heroin dealing.

3.      The other offences of which he was convicted at various times include assault, intimidating and resisting police, stalking, theft and property damage.  The following is a chronology of his criminal history:

CHARGE DATE	CONVICTION	SENTENCE
23 July 1995	Possession of prohibited drug	Fine: $800 plus Costs of $46
8 August 1995	Supply prohibited drug (Heroin)	Fixed term: 3 months
16 March 1996	Possession of prohibited drug	Fixed term: 3 months
11 April 1996	Supply prohibited drug	Fixed term: 5 months 16 day (conviction upheld on appeal)
16 May 1996	Breach of parole
1 November 1996	Possession of prohibited drug (heroin)	Fine: $500 plus Costs: $51
7 February 1997	Failure to appear	Fine: $200
17 March 1 997	Common Assault (2 counts)	Fine: $200 plus Costs: $51
4 April 1997	Breach of bail	Order made
26 May 1997	Use offensive language in/near public place/school	Fine: $200 plus Costs: $51
2 June 1997	Breach of bail	Order made
28 October 1997	Breach of bail :	Order made
19 December 1997	Supply prohibited drug	Fixed term: 6 months
12 September 1998	Drive without licence	Fine: $300 plus Costs: $51 Disqualification: 6 months
	Take and drive: conveyance without consent of owner	Fixed term: 6 months
	Receive stolen property between $5000 and $15000 - misdemeanour	Filed in Court
12 March 1999	Enter in closed ,land not prescribed premises	Fine: $400 plus Costs: $52
14 March 1999 15 March 1999	Use offensive language in/near public place/school	Fine: $300 plus Costs: $52
	Intimidate police officer in execution of duty	Fine: $300 plus Costs: $52 Fixed term: 7 days
	Breach of Bail	No action
28 April 1999	Enter in closed land not prescribed premises	Fine: $500 plus Costs: $52
29 April 1999	Possess prohibited drug	Fine: $300
30 June 1999	Enter enclosed land not prescribed premises	Fine: $500 plus Costs: $52
22 July 1999	Resist officer in execution of duty	Fine: $500 plus Costs: $52
7 August 1999	Enter enclosed land not prescribed premises	Fine: $400 plus Costs: $54
27 December 1999	Robbery in Company	Imprisonment: 3 years (commencing 1 August 2000, appeal dismissed)
21 February 2000	Use offensive language in/near public place/school	Fine: $400 plus Costs: $54
7 March 2000	Stalk intimidate with intent to cause fear of personal injury (4 counts)	Imprisonment: 6 months (commencing 8 March 2000, conviction upheld on appeal)
13 February 2003	Goods in personal custody suspected of being stolen (not motor vehicle)	Imprisonment: 6 months (commencing 13 February 2003, conviction upheld on appeal)
	Supply prohibited drug	Imprisonment: 16 months (commencing 13 February 2003, conviction upheld on appeal)
23 March 2004	Enter enclosed land not prescribed premises	Fine: $300 plus Costs: $61
11 June 2004	Shoplifting	Imprisonment: 6 months (commencing 15 July 2004)
17 June 2004	Use offensive language in/near public place/school	Fine: $200 plus Costs: $63
15 July 2004	Supply prohibited drug	Imprisonment: 20 months (commencing 15 July 2004, conviction upheld on appear)
2 December 2005	Use unregistered registrable class A motor vehicle	Fine: $400 plus Costs: $65
	Never licenses person drive vehicle on road (first offence)	Fine: $600 plus Costs: $65
6 January 2006	Use offensive language in/near public place school	Fine: $200
	Resist of hinder police officer in execution of duty	Fine: $300
	Maliciously destroy or damage property	Fine: $500 plus Costs: $65 Compensation: $500
13 April 2006	Use offensive language in/near public place/school	Fine: $350 plus Costs: $65
20 May 2006	Possess implements to enter/drive conveyance	Imprisonment: 4 months (commencing 20 December 2006)
	Never licensed person drive vehicle on road (second offence)	Fin: $600 plus Costs: $67 Disqualification: 3 years
	Drive conveyance without consent of owner	Imprisonment: 9 months (commencing 20 April 2007)
25 May 2006	Breach of bail	Order made
12 June 2006	Use offensive language in/near public place/school	Fine: $200 plus Costs: $67
	Intimidate police officer in execution of duty	Imprisonment: 9 months (commencing 20 April 2007)
	Resist officer in execution of duty	Imprisonment 4 months (commencing 20 December 2006)
2 August 2006	Use offensive language in/near public place/school	Fine: $300 plus Costs: $67
20 September 2006	Maliciously destroy or damage property (less than $2000)	Imprisonment: 2 months (commencing 20 October 2006)
7 October 2006	Breach of bail	Order made
12 October 2006	Enter enclosed land not prescribed premises	Fine: $250 plus Costs: $67
17 October 2006	Self administer/attempt self administer prohibited drug	Fine: $500 plus Costs: $67
	Enter enclosed land not prescribed premises	Fine: $200 plus Costs: $67
19 October 2006	Breach of bail	Order made
	Use offensive language in/near public place school	Fine: $500 plus Costs: $67
	Intimidate police officer in execution of duty	Imprisonment: 9 months (commencing 20 April 2007)

4.      The applicant also has a long history of offences in correctional facilities, resulting in an “extreme” alert to correctional officers on 9 November 2006 and an ongoing alert to be “cautious at all times“.  These 39 offences include:

(a)Assaulting officers, including spitting on an officer (3 counts);

(b)Assault/fights/other combat (6 counts);

(c)Damaging property or cell (5 counts);

(d)Possession of prohibited goods or substances (3 counts);

(e)Intimidation or abusive language (11 counts);

(f)Disobeying instructions or breaching rules (10 counts); and

(g)Failure of a urine test.

5. On 16 April 2007, a delegate of the respondent sent the applicant a notice of intention to consider cancellation of the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). The notice gave the applicant until 10 May 2007 to offer a response concerning the character test and until 24 May 2007 to respond to whether the discretion to cancel the visa should be exercised (G p38-42). An extension of time to respond until 19 July 2007 was granted by letter dated 25 May 2007 (G p47).

6.      The applicant submitted a letter from Mr Song Eap dated 21 June 2007 (G p99) indicating that employment was available for the applicant at the business operated by Mr Eap’s employer.

7.      The respondent sent a written notice to the applicant on 18 June 2007 inviting comment on information concerning the applicant's conduct in correctional facilities (G p57-58).  A third letter of notice, again inviting the applicant to comment on his offences in jail, was sent by the respondent to the applicant on 26 September 2007.  The applicant did not respond (G p106-107).

8.      The minister’s delegate cancelled the applicant’s class BF transitional (permanent) visa on 26 October 2007, informing the applicant of the cancellation by letter dated 14 November 2007 (G p1-3).  The applicant applied to this tribunal for a review of the delegate’s decision on 30 November 2007.

The hearing

9.      At the hearing, the applicant was unrepresented and Mr Greg Johnson of DLA Phillips Fox appeared for the respondent.  The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing.  A Vietnamese interpreter was sworn into assist the applicant, who gave oral evidence in person.

10.     As part of its outreach program, the tribunal gave the applicant rather more assistance than would normally be rendered to a party to an application.  At the directions hearing on 18 December 2007, the applicant was emphatically informed of the effect of ss 500(6H) and (6J) of the Act and of the necessity for him to ensure that information or documents on which he intended to rely at the hearing should be supplied to the respondent at least two clear business days before the hearing.  A few days before the hearing date, however, he had still not lodged any material.  It appeared that a duty lawyer had agreed to assist him but did nothing for a month and on 22 December 2007 faxed the tribunal to say that he was withdrawing from the matter.  On the day before the time limit expired, it was arranged that the applicant would by telephone dictate, through an interpreter, a statement to my associate, Ms Wallace, which she typed.  The statement was admitted without objection as Exhibit A3.  That constituted a greater degree of assistance to a party than the tribunal would normally consider it appropriate to give, but as the applicant had not previously lodged with the respondent any written statement in response to the various notices, the alternative was that the matter would come to hearing with no possibility of any evidence on the applicant’s behalf being adduced.

Issues

11.     The issues in this case are:

(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act, and

(ii)if not, whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

12. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

For the purposes of this section, a person does not pass the character test if:

(a)       the person has a substantial criminal record (as defined by subsection (7); or

…

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

the person is not of good character; …

…

13.     “Substantial criminal record “ is defined in s 501(7)

…

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)the person has been 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;

…

14.     Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

15.     On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501.  The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Evidence at the hearing

16.     At the hearing the applicant adopted his statement (Exhibit A3), in which he  stated that his father is suffering from a mental illness and also dementia.  If the applicant were allowed to remain in Australia, he would upon his release endeavour to find employment in order to take care of his father.  He would also find stable accommodation so that his father could move in with him so that he could give him proper care.

17.     The doctors at the mental institution near Granville where he has been receiving in-patient care for almost three years have told him that as soon as his father returns to normal he will be discharged so that the applicant can take care of him.  On his last visit, a doctor (or possibly a nurse) had told him that his father’s condition had greatly improved and he was nearly back to normal.

18.     The applicant said he now realises that what he did in the past was wrong and regrets it.  He would like to change into a good person, find employment and permanent accommodation and make a fresh start.  As he had been taken into detention only three weeks after his last release from prison, he had not had an opportunity to show that he had reformed.

19.     He has a daughter aged 8, 9 or 10, named Lillian who he has seen only two or three times since he separated from her mother when she was only aged about four months.  He could not recall her date of birth.  He thinks she currently lives somewhere in Cabramatta with her grandmother, and if he is released from detention he would try to find her.

20.     If her mother Lily Oanh agrees, he would take care of his daughter also.  But Lily, who herself has been in jail for two or three years, is hostile to him because of their break-up and would be unlikely to agree.

21.     In cross-examination he added that when he first came to Australia he had one aunt in Vietnam and an aunt, an uncle, and his father in Australia.  He had no contact with the aunt and uncle because they were living in Melbourne.  His father had met him at Sydney airport and he had moved in with him and his second wife.  He had lived with them for about a year, but after that his step-mother had “thrown [him] out of the house” as she had taken a dislike to him.

22.     He had initially lived alone after moving out of his parents’ house in 1995.  He soon began to offend, because a Thai roommate had caused him to become involved with drugs, and he needed money to support his addiction and for other expenses.  He was sentenced to three years' imprisonment for robbery in company in 1999 but he said he was not directly involved in perpetrating the offence.  The victim could not recognise him, but two other witnesses (who were ambulance officers on duty) had identified him.  The victim’s gold necklace had in fact been taken by the principal offender, his Thai roommate.

23.     After his release from prison, he became addicted to drugs and re-offended because he needed money.  He is no longer a drug addict, however.

24.     In mid-2003, he was sentenced to 16 months' imprisonment for supplying heroin, and after his release met a number of friends he had made in prison.  He subsequently re-offended at Parramatta.  On 17 January 2005, he was sentenced to 20 months' imprisonment for supplying heroin.  Three weeks after his release from prison after the conclusion of that sentence, he was detained and taken to Villawood.

25.     During his three weeks at liberty he sought accommodation in Wyong Street, Canley Heights, with a friend’s mother, but did not get on with her and was therefore seeking other accommodation in that area.  He had complied with his parole conditions during those three weeks, although on a previous occasion, he had failed to report because he had a leg injury and had lost his mobile telephone so that he was unable to inform the police.  His roommate could not contact the police on his behalf because he could not speak English.

26.     He denied parole breaches in other instances, saying that he had in fact notified the parole authorities of his address changes.

27.     He has little contact with his step-siblings.  He last visited his father in the mental institution over a year ago, that being the occasion when staff told him that his father’s condition was improving and that he was almost back to normal.  He was not, however, aware of his father’s present condition and did not know whether he was now considered suitable for discharge.

28.     Asked about his failure to undertake educational or rehabilitation courses in prison, he said that he had made arrangements to undertake a job orientation course at Liverpool after his release, but was detained before he could enrol.

29.     He said that Mr Eap, who wrote the letter promising him employment at Excel Metal if he were released, was someone he had known before he was imprisoned, not someone he had met while in prison.  The person referred to in his conversation with the respondent’s officer Alice Beattie on 25 May 2007, was in fact a mechanic friend he had known in prison, an older man of Malaysian origin who he knew as “Uncle Chen”.  He had intended to ask Uncle Chen to write a letter on his behalf, but when Mr Eap offered to do so, he had thought that would be enough.

30.     Mr Eap is a manager at Excel Metal, which manufactures metal doors, windows and security doors.  He has training responsibilities and the authority to employ and dismiss staff.  Although the applicant had no experience in the metal trade, the kind of work he was being offered was something he could learn on the job and involved assembling metal pieces.

31.     The applicant admitted that he did not know when his daughter Lillian was born, but said she is currently living in Cabramatta with her grandmother.  He had lived with Lillian's mother Lily Oanh for three years, but they had separated after their daughter was born in 1997.  He has met Lily a few times since they separated, but she will not allow him to take Lillian for a day or so.  Lily herself has been in prison for the last two or three years.

32.     He has seen his daughter two or three times in all, at the shops, and has spoken a few words to her, but she seemed afraid of him because she did not know him.  If released, and if he could obtain permission, he would like to take care of Lillian, and he believed her grandmother would like her to have a father.  The grandmother did not, however, give any written or oral evidence.

Applicant’s submissions

33.     The applicant said that he intended to build a new life if allowed to remain in Australia.  His first priority would be to take care of his father, who is currently in a bad situation.  He would obtain employment, find accommodation and seek to lead a normal life.  His friend Mr Eap would assist him to obtain work.

34.     He said he was not the actual perpetrator of the robbery for which he received a three-year sentence.  That offence had not seriously affected anyone’s life.  He intended to change and lead a normal life.

35.     His only work experience was in his uncle’s family business, an automotive supply shop.  He worked part-time about four days a week for approximately a year, about four or five years ago.

Application of the Law and Findings of Fact

36.     As was stated above, the first issue for me to decide is whether, pursuant to ss 501(6)(a), (c)(i) and (ii), the applicant passes the character test having regard to his substantial criminal record, past and present criminal conduct and past and present general conduct.  The application of the character test is by reference, first, to a discussion of what is meant by good character.  For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

…

The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:

…

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

…

37.     On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).

38. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

39.     In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test.  Of relevance in the present case is paragraph 1.9(a), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law or human rights (paragraph 1.9(a)).

40.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

41.     In this case the applicant admits that he has been sentenced to a term of imprisonment of 12 months or more (in fact on three separate occasions) in accordance with the definition of “substantial criminal record” in s 501(7).  Accordingly, under s 501(6)(a), he does not pass the character test.  It is therefore not necessary to consider whether he meets the criteria in s 501(6)(c).

42. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

…

43.     Paragraph 2.3 sets out the primary considerations:

…

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

…

Paragraph 2.4 explains:

…

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

…

44.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (f), crimes of violence against persons.  Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

45.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

46.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(a) and (f) that crimes of violence against persons and dealing in prohibited drugs such as heroin are to be treated as very serious.  In this case, the applicant has accumulated the substantial criminal record described above over an 11-year period between 1995 and 2006.  Mr Johnson pointed out that he was before the courts on at least one criminal charge every year of that period except the years in which he was serving the term of imprisonment for robbery in company.

47.     When sentencing him for that offence, acting Judge Woods observed that:

… we must always remember that such an attack puts fear into the victim at the time and most victims hold this fear for a long time afterwards, and a victim and other people in the community get frightened that it is not safe to walk the streets at any time.  So for a victim, this is very serious, … (G pp94-95).

48.     He has been sentenced to terms of imprisonment on 15 separate occasions, and on three of those occasions, for periods exceeding 12 months.  His record includes offences of supplying heroin and crimes of violence and stalking or intimidating with intent to cause fear of personal injury.  It is aggravated by assaults on police and correctional personnel and by his bad record of offences in correctional institutions.

49.     There appear to be no mitigating factors.  He says he was not directly involved in the robbery in company, in the sense that he did not personally take the necklace.  It is settled law that this tribunal cannot canvass the correctness of any conviction or sentence (see Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234), but in any case it is clear that Woods AJ found that the applicant participated in the offence either as principal offender or as a principal in the second degree (G p94). As Woods AJ also noted, the applicant has had a difficult life, but the same is true of many people who do not turn to crime (G pp95-96). His hard life could never be an excuse to attack a woman on the street (G p96). I conclude that the applicant’s criminal record can only be regarded as very serious.

50.     The next issue for the tribunal to consider is the risk of recidivism.  As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]. The applicant has offended seriously and repeatedly over an 11-year period. He was not deterred by prison sentences of increasing severity and continued to break the law after serving the three-year sentence for robbery in company. While a prisoner, he committed numerous breaches of regulations and corrections staff had to be warned to exercise caution at all times in any dealings with him.

51.     A report in January 2006 on his breaches of parole conditions, which resulted in parole revocation, noted at least four missed reporting appointments, failure to answer correspondence and failure of a urine analysis test.  “Due to Mr Tran’s unwillingness to co-operate with this Service, no effective case management has been possible”, the parole officer noted (G p104).

52.     A more recent report concerning events in September 2007 stated that,

…

As Mr Tran did not provide the correct [address] information, this Service has been unable to undertake a Pre-Release Home Visit.  When arrangements were being made for a visit to the proposed address Mr Tran stated angrily that he did not want any Parole Officers to visit that house … (G p101).

53.     The report continued:

…

Mr Tran has a long history of drug related violent crime.  He also has a poor history of compliance whilst on supervision, and his parole has been revoked on two occasions.  In custody Mr Tran also has a poor record.  He has two active Alerts calling for Extreme Caution at all Times … (G p101).

54.     The report concluded that “Mr Tran is assessed as being a HIGH risk of re-offending, and his offending behaviour is [sic] remains largely unaddressed” (G p102, emphasis in the original).

55.     At the hearing the applicant sought to explain one of the missed reporting appointments, but not the other three.  His explanations about his changes of address are uncorroborated and do not account for his angry refusal to have a parole officer visit.  In any event his itinerant and unsettled lifestyle appears unconducive to life as a responsible citizen.

56.     He did not undertake any rehabilitation or education courses in prison, but I accept that he planned to enrol in a job orientation course before he was detained and taken to Villawood.  But apart from that there appears to be no evidence of rehabilitation.  He says he is no longer addicted to drugs, but if that is correct, it is probably the inevitable result of being incarcerated in prison or detained at Villawood.  It has not been put to the test of a sustained period at liberty.

57.     He has expressed a general regret for his pattern of wrongdoing, but seeks to deny involvement in the robbery in company, though even by his own account he was a principal in the second degree.  He claims that the offence did not seriously affect anyone’s life, but there is no evidence to support that proposition.  Woods AJ, of course, took a different view.  He thus seemed to have little real remorse for his crimes, which is consistent with the parole officer’s assessment on 17 September 2007 that his offending behaviour remains largely unaddressed.

58.     The letter from Mr Eap suggests that he may have prospects of employment if released into the community, but he has had little work experience other than helping his uncle part-time in the family business, and there is no evidence as to why that employment ceased or was not resumed.  I must therefore agree with the parole officer’s recent assessment that he is at high risk of re-offending.

59.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance.  The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

60.     Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

61.     As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”. In my view not cancelling the visa of a person with as serious a criminal record as the applicant would send the wrong message to non-citizens contemplating criminal conduct.

Expectations of the Australian Community

62.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

63.     It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).  Historical and other reasons have also been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].

64.     In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that “it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community” (219 CLR at page 632).

65.     Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation can be imposed on them (at p658).

66.     At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).

67.     In my view the community would expect that the visa of a person with such a serious and sustained criminal record, who is assessed at being high risk of re-offending and who shows little evidence of rehabilitation should be cancelled.

The Best Interests of the Child

68.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

69.     The applicant has a daughter, Lillian, who is now probably aged 9 or 10, who is an Australian citizen.  The applicant is uncertain of her age and does not know her date of birth.  He separated from Lillian's mother when Lillian was four months old and since then has seen her only two or three times, at the shops.

70.     Lillian currently lives with her grandmother in Cabramatta while her own mother is in jail.  The applicant does not know where she lives, but if released he would try to find her and take care of her.  There is no other evidence about her living conditions or welfare.

71.     The Direction states that in general terms, the child’s best interests will be served by remaining with its parents (para 2.15), and I start from that presumption.  It also directs the tribunal, however, to have regard to the nature and duration of the relationship and its future prospects (para 2.16).  In that regard, the evidence shows that the relationship between the applicant and his daughter is tenuous.  He admits when he has seen her at the shops she has appeared to be afraid of him because she does not know him.  It seems unlikely that he would be readily able to build a stronger relationship in the future because of her mother’s opposition to giving him access.

72.     Further, the applicant’s high risk of recidivism raises the possibility that he might be incarcerated again, thereby reducing any possibilities of access.  On the evidence it is not at all clear that the applicant remaining in Australia is in the child’s best interests. One may presume it is in Lillian’s interests that she continue to live in this country.   The third primary consideration must be regarded as a neutral factor in this case.

Other considerations

73.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

74.     The applicant says that his primary reason for wishing to stay in Australia is to take care of his sick father.  Contact between the two has been severely limited by the applicant’s imprisonment and his father’s institutionalisation in a care facility.  Being in institutional care, his father is not dependent on him for primary care.  The applicant has not seen him for over a year and is unaware of his present condition, though he thinks it is improving.

75.     The applicant says he has had little contact with his step-siblings in Australia.  In his personal particulars form he stated that he has uncles and aunts in Vietnam (G p45).

76.     As the applicant has had minimal work experience during his years in Australia, no inconvenience to any employer would arise if his visa were cancelled.

77.     There is little evidence of rehabilitation and, on the contrary, the applicant has a record of being unco-operative with the probation and parole service.  It appears that he has an offer of employment with Excel Metals, however.  But there is nothing to show that the company would be disadvantaged if his visa were cancelled.

78.     Having lived in Australia for most of the time since the age of 16, it is likely that the applicant would experience some hardship in re-adapting to life in Vietnam.  He did not suggest, however, that he would face any particular obstacles in that regard.  He has some family in Vietnam and as by all accounts the economy of that country is growing strongly, it may not be too difficult for him to find employment.  It does not appear that any Australian citizen would suffer hardship if he were to return to Vietnam.

79.     In any event, such weight as the other considerations bring to bear in the applicant’s favour is, I conclude, outweighed by the primary considerations of community protection and expectations.

80.     Nothing in the evidence or the submissions suggest that cancelling the applicant's visa would be inconsistent with any of Australia's international obligations.

81.     The discretion should therefore be exercised in favour of cancelling the applicant’s visa.

82.     The decision under review is affirmed.

I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:…………………[sgd]………………………………

R. Wallace, Associate

Date/s of Hearing:  16 January 2008
Date of Decision:  1 February 2008
Solicitor for the Applicant:                  Self
Solicitor for the Respondent:             Mr Greg Johnson, DLA Phillips Fox