Tran and Minister for Immigration and Citizenship
[2007] AATA 1241
•19 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1241
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2007/0419
GENERAL ADMINISTRATIVE DIVISION ) Re CU TY TRAN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date19 April 2007
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED the visa held by the applicant should not be cancelled. ..............................................
John Handley
Senior Member
MIGRATION – application to review visa cancellation – applicant’s father died in South Vietnam when he was one year of age – abandoned by his mother, lived with grandparents to age 10 – sent to Malaysia unaccompanied and lived in a refugee facility to age 18 where he migrated to Australia by sponsorship – introduced and subsequently addicted to heroin after marriage breakdown and exploited in employment – many subsequent convictions and periods of imprisonment – does not past ‘character test’ – is now prescribed methadone – absence of any treatment, support or methadone programs in Vietnam – decision under review set aside
Migration Act 1958 (Cth) s 501
REASONS FOR DECISION
19 April 2007 Mr John Handley, Senior Member 1. On 19 May 2006, a delegate of the Minister made a decision to cancel a visa which had been issued to the applicant. That decision was communicated to the applicant’s representatives on 6 February 2007. The applicant applies by this application to review that decision.
introduction
2. Mr Tran, the applicant, is presently 33 years of age having been born on 18 May 1973 in South Vietnam. His father was a member of the South Vietnamese Army but was killed in service. His mother then placed him in the care of other relatives – the applicant had not reached his first birthday ‑ with whom he lived for about 10 years. He completed limited schooling during that time. At the age of 11 or 12 years, he was placed on a boat destined for Malaysia where he was detained as an unaccompanied infant in a refugee camp for the next six or seven years. During that time he was largely under the care of priests and nuns who provided limited instruction in the English language.
3. In September 1991 when the applicant was 18 years of age he was sponsored to migrate to Australia by people who knew his grandparents. A sub-class 205 visa was then issued and it is believed that by reason of amendments to the Migration Regulations in 1994, that visa was deemed to continue as a transitional (permanent) visa which permitted the applicant to reside in Australia indefinitely. It is the latter visa which is being cancelled and from which review is sought in these proceedings.
4. In 1993, the applicant returned to Vietnam. He located his mother but she did not recognise him. He learnt then that she had remarried. Whilst in Vietnam the applicant married and after he returned to Australia he sponsored his wife to also migrate here. That relationship broke down after about 12 months. After living in Melbourne for a short time the applicant moved to New South Wales where he lived with relatives and worked as a machinist in a clothing factory where, it would appear, he worked extensive hours at a salary well below award rates. He then returned to Melbourne and whilst living with a friend in rented accommodation he was introduced to heroin and thereafter he rapidly became addicted to it. He did obtain some employment but it would appear that his salary was expended upon purchase of drugs of addiction.
5. From 1995, the applicant made many appearances before Magistrates’ Courts in Melbourne. Those appearances arose out of him being charged mainly with possession, use and trafficking of drugs of addiction being, heroin, cannabis and amphetamines. He has convictions also for offences of burglary and two convictions for aggravated burglary but without physical violence upon the occupants of the premises which he entered.
6. In the late 1990’s, the applicant enjoyed a relationship with his partner Linda Chau and in August 2000 his daughter Jessica was born. The relationship with Linda has subsequently broken down and the applicant has been prevented from having contact with his daughter. The applicant however has contributions towards Jessica’s welfare deducted from his Social Security payments which is credited to an account with the Child Support Agency.
7. The applicant has been imprisoned on a number of occasions, the last being in 2001. He has also served community based orders for which the police records also record a breach. On occasions the applicant has also been affected by prescription medication resulting in him being charged in September 2006 with theft of two bottles of alcohol from a local hotel.
8. The applicant has been engaged in detoxification programs and has been prescribed methadone.
9. Mr Hughan of Counsel who appeared on behalf of Mr Tran conceded that his client does not pass the character test because he has a substantial criminal record within the meaning of s501 of the Migration Act 1958 (the Act). Mr Tran also makes that concession. However, visa cancellation may be avoided subject to the exercise of a discretion available under and limited by a Direction issued by the Minister pursuant to s 499 of the Act. Compliance with the Direction is compulsory (s 499(2)(a)). The Direction presently issued by the Minister is known as Direction 21.
the evidence
10. The applicant was taken into immigration detention on 6 February 2007 being the date that the decision under review was served on his representatives. He is subsequently being detained at the Maribyrnong Detention Centre in Melbourne. The applicant gave evidence in these proceedings. He had completed a statement which he adopted in these proceedings and it is reproduced as follows:
I, TRAN Cu Ty, of [address] STATE AS FOLLOWS:
1.I am the Applicant in this case. I accept that I do not pass the character test, but I ask the Tribunal to exercise its discretion not to cancel my visa.
2.I was born in Minh Hai, a village in South Vietnam on 18 May 1973. I am now 33 years old. Minh Hai is about 300 kms south of Saigon, near the borders between Laos, Cambodia & Vietnam.
3.When I was born the war in Vietnam was still going on. My father fought in the South Vietnamese Army. Around the time of my first birthday, he was killed in the fighting. After this my mother Tran Lin sent me to live with her parents at another village, where I stayed for about seven years. During this time I completed about four years of school.
4.When I was eight my aunt put me on a boat bound for Malaysia. The conditions on the boat were very bad. Some neighbours looked out for me during the journey, but there was not enough food or drink and we were all very cramped.
5.On arrival in Malaysia I went to the Bulao Bidong refugee camp. The camp held about 13,000 people in total. For most of the time I lived there I was cared for by priests and nuns who looked after the many children and young people who were there alone. I went to school there and learned some English. Each day in the camp we would check the notice boards to see if we were on the list to leave the camp and go to America or Australia.
6.When I was 18 I was sponsored to migrate to Australia by a friend of some of my relatives. On arriving here I lived with my sponsor’s family in Collingwood and enrolled in Year 9 at the Collingwood Community College. School was very difficult for me because I could not understand much English and I fell behind quickly.
7.I traveled to Vietnam for about three months from May to August 1993. During that time I located my mother, but she did not recognize me. While there I married Tiep. When I returned to Australia, I sponsored her to migrate. We then lived together for about one year, but her family were also living with us and the stress caused by this arrangement resulted in the breakdown of the marriage.
8.Some time later I moved to Liverpool in New South Wales at the invitation of another relative. However it soon became clear that she only wanted me to work for her in very bad conditions. I had to sew garments all day, into the night and was paid only $100 per week. After six months I left and returned to Victoria. At first I lived in a Housing Commission flat in Fitzroy. I lived with a friend and we went fruit picking together.
9.While I was living there another friend introduced me to heroin. At first he gave it to me for free, just to try, but I became addicted and wanted more. Then I had to pay for it. I spent all the money I earned from working on heroin.
10.I tried several times to get off heroin but it was very difficult. When I could not get heroin I used other drugs including rohypnol and serapax. In 1995 I first appeared at Court in Melbourne for possession of drugs and got a good behaviour bond.
11.In 1997 I was still using drugs. I committed crimes to get money to pay for the drugs. I stole property which I sold in return for drugs and sold drugs to other users in order to be able to get some heroin for myself. The second time that I was charged with trafficking drugs I did not go to Court. I left Victoria and went into a rehabilitation facility near Liverpool where I stayed for 12 months. I then lived in Liverpool for another six months and was drug free.
12.When I returned to Melbourne in 1999 I relapsed into using heroin and committed further crimes. I was arrested for an aggravated burglary, which had occurred when I broke into a house to steal property when someone was at home. I did not do anything to the person, but because the person was present the law deemed it to be an aggravated burglary.
13.I was arrested and remanded in custody for about two months. When I went to Court the second charge of trafficking from 1997 was brought on. I was sentenced to 57 days gaol, which I had already served so after the Court hearing I was released. Unfortunately I continued to use heroin and over the following years committed further crimes, including aggravated burglary (in circumstances similar to the earlier offence), burglary and theft. In 2001 I was sent to prison for 14 months.
14.In the late 1990’s I had a relationship with a woman named Linda. We have a child, Jessica, who was born on 21August 2000. A few months later Linda left me and she has made it clear that she does not want me to have contact with Jessica. I last saw Jessica a few years ago, but I want to try to re-establish the relationship with Jessica and be involved in her life. I don’t want her to be without a father like I was.
15.Since Linda left me I have always contributed money towards child support for Jessica through my Centrelink payments.
16.Although I have continued to use drugs on occasions since I was released from prison in mid-2002 I have tried very hard to stay clean. I have not been back to gaol and do not want to go back there. I am now off heroin for, thanks to the help of the staff of Turning Point, where I went every day for my program. I have managed to reduce my intake from 70 mls per day to 50 mls. I want to keep reducing the dosage and eventually to stop taking it completely.
17.There have been times that I have taken too many sleeping pills and done stupid things. For instance I have been charged with theft of two bottles of alcohol from the local pub. These thefts happened when I had taken too many tablets and did not really know what I was doing. Also I did only about half of the CBO that was ordered in 2005 because of the overuse of these tablets.
18.Before I was placed in detention I was living with my friend Gordon at the Commission flats in Collingwood. I was planning in the future to travel to Mildura to go fruit-picking again. That way I could stay out of Melbourne and I think it would help me to stay away from drugs and crime.
19.I am very worried what will happen to me if I am forced to go back to Vietnam. Although I speak some Vietnamese I cannot read or write the language well. I have no contact with anyone there. Even if any of my relatives are alive they could not assist me.
11. Mr Tran gave evidence at the hearing with the assistance of an interpreter. He adopted his statement but corrected it to the extent that he lived with his grandparents for approximately 10 years and was 11 or 12 years of age when he was sent to Malaysia. The applicant was detained at the Refugee Camp in Malaysia until he was 18 years of age. He said that had he chosen to migrate to the United States, he would have left at an earlier age but he had been advised by an aunt who lived in the United States that it would be preferable for him to migrate to Australia. Mr Tran understood that there was a policy of the Australian Government at or about the time of migration to Australia that he would not be permitted to enter as an unaccompanied minor whilst under the age of 18 years.
12. Mr Tran said that he was permitted to come to Australia because he was sponsored by a cousin who lived in Melbourne. He later returned to Vietnam to marry his sponsor’s sister, Luong Tiep by arrangement. Whilst he acknowledged that the marriage would permit him to sponsor her to come to Australia, he did want to be married. Luong was then 17 and the applicant was then 19. The applicant returned to Australia before his wife and successfully arranged to have her migrate in the following year. He said that he lived with his wife and her brother and sister in Melbourne for about two years. During the first year he said relationships within the household were happy but in the second year the relationships deteriorated. Ultimately the marriage ended. Shortly thereafter the applicant commenced taking drugs. He said that he was sad for one year and then he was hooked.
13. Mr Tran said that he was first exposed to illegal drugs by the persons with whom he lived and other associates. After he became addicted to heroin, he purchased it by his unemployment benefit. Some of it was sold to others so that he could acquire monies to make other purchases of the heroin. He agreed that he had trafficked in drugs and had consumed them. He also said that he was living from one day to the next and acted in company with others when selling drugs. He was also consuming prescription drugs which were described by Mr Jordens, a witness who gave evidence later in these proceedings, as being benzodiazepams. Mr Tran described them as being sleeping tablets. On occasions he also smoked marijuana.
14. After a number of Magistrates’ Court appearances between 1995 and 1997 for offences of possess, use and traffic heroin, possess and use cannabis, theft, utter forged prescription and fail to answer bail, Mr Tran moved to New South Wales. He participated in a program entitled GROW for about 12 months and also worked in a clothing factory owned by a relative. It was uncertain whether he went to New South Wales to participate in the GROW program and later worked in the clothing factory or in the reverse sequence. The GROW program exposed him to the perils of drug abuse and offered him mechanisms to avoid exposure to and consumption of drugs. When the program finished, the applicant obtained employment in a clothing factory owned by a relative. After approximately six months, he returned to Melbourne and when in the company of former colleagues he resumed consumption of heroin and was convicted on a number of occasions for related offences including trafficking. He also was arrested and later convicted of aggravated burglary following a break in by him into domestic premises when he was under the influence of sleeping tablets. The applicant said that he ceased taking heroin on a regular basis in about 2002 but did use it on a few occasions up until 2003 but not since. At or about that time, the applicant entered into a program with the Turning Point Drug Rehabilitation Centre in Fitzroy and has been prescribed and has consumed methadone.
15. In approximately 1999 the applicant enjoyed a relationship with Linda Chau. A child, Jessica, was born of that relationship but it ended approximately three months after she was born. The applicant has been denied access to Jessica despite his attempts to have contact. He said that monies are deducted from Centrelink benefits for processing by the Child Support Agency. The applicant said that he has not been imprisoned since 2002. In 2004, he appeared before the Sunshine Magistrates’ Court charged with possessing prescribed drugs. The proceeding was adjourned without conviction on condition that he continued to attend the Turning Point facility. In May 2005, the applicant was before the Melbourne Magistrates’ Court on charges of possess heroin, cannabis and amphetamines. He was ordered to undertake 100 hours of unpaid community work and continue to have treatment with respect to his drug addiction. On 18 April the week following the hearing of these proceedings, the applicant is to appear before the Melbourne Magistrates’ Court charged with theft from a bottle shop. He said, that whilst affected by sleeping pills, he stole two bottles of wine. It appears that he has also been charged with breach of the Orders of the Melbourne Magistrates’ Court made on 30 May 2005.
16. Mr Tran was also asked to explain a report which was annexed to the respondent’s Statement of Facts and Contentions which was completed by officers of the Maribyrnong Detention facility where the applicant was detained pending these proceedings. The report is dated 20 March 2007 and refers to an incident on 3 March 2007 where an officer purports to record allegations made of threats made by the applicant. The applicant said that one of the informants, Le, is a liar and he denied the allegations made by her. The applicant denied knowledge of the other informant described as client Schramm.
17. The applicant acknowledged that he had been served with three warning notices from the respondent. The first in 2001 was served on him when he was in gaol. He said that he brought that notice to the attention of his solicitor. A notice was also served on him in 2004 which he initially denied receiving but in cross‑examination acknowledged that it was delivered to him personally at the time he applied for a return entry visa when he was intending to travel to Vietnam. The notice of 2005 was forwarded to his current representatives and it was the notice which was the genesis for these proceedings.
18. The applicant said that if he is allowed to stay in Australia he will continue to attend the methadone program at Turning Point and ultimately he will travel to Mildura to work on a farm. He said that if he does return to Vietnam it is likely that he will be exposed to drugs and will not be able to resist them. He acknowledged that he does have an aunt who lives in Vietnam with whom he may be able to live, however she has a family of her own and he knows nothing about Vietnam. He said that his mother would not be able to help him because she is poor and she has a family of her own. Since 1993 when the applicant was last in Vietnam, he said that he has had no contact with any family member.
19. In cross‑examination, Mr Tran said that he felt ashamed about his past conduct. He said that his consumption of drugs occurred because he was sad. He said that he hates heroin and he stays away from persons who use it. He does want to have a relationship with his daughter Jessica and acknowledged that until he is drug free and stable it is unlikely that that relationship will ever occur. He also said that he stopped taking benzodiazepine in about 2002 and has subsequently felt better although consumption of drugs of that type has apparently given rise to the proceedings which will be heard in the Magistrates’ Court next week.
20. Mr Tran was challenged in cross‑examination as to why he should not return to Vietnam. He said that he knew nothing about the country, he has chosen to live elsewhere and he regards himself as being an Australian. He said that his father was killed by the Communists and he has no wish to live in Vietnam. Additionally, he said that his family fell apart because of the Communists. He said that he should be allowed to stay in Australia because there are a lot of other people like him. He acknowledged that he had made mistakes and asked that he be given a chance.
jay jordens
21. Mr Jordens is a Neighbourhood Justice Officer with the Neighbourhood Justice Centre in Collingwood. He provided a reference of 4 April 2007 which was received into evidence. He also referred in that reference to a statement he made in October 2005 which was lodged by the respondent with the T‑documents. It was prepared on behalf of the applicant and lodged with the Melbourne Magistrates’ Court during one of his previous appearances. Mr Jordens has an extensive background in community, residential and therapeutic facilities, particularly involving persons who are affected by drugs and alcohol. He has academic qualifications specialising in Asian studies, he speaks the Vietnamese and Khmer languages and has worked extensively in Cambodia and Vietnam. He has been published extensively and has received commendations and citations from government and from the United Nations which has engaged him as a consultant.
22. Mr Jordens has known the applicant for many years. He first met him in the early 1990’s when he was employed as a Project Officer on the Collingwood Housing Estate. At that time Mr Jordens was exposed to a number of persons who were engaged in trafficking drugs. He recalled that many young persons frequented the estate and were regarded as targets of the project in which he was engaged. Those persons were between 12 and 20 years of age and were of mixed ethnic and cultural background. He recalled that the network of drug use was well established when the applicant first entered the estate. He recalled that the applicant became part of that network and was influenced by his peer group. He rapidly came to the attention of police. Mr Jordens later supported him in hearings before the Melbourne Magistrates’ Court and later referred him to a rehabilitation program known as GROW at Liverpool in New South Wales. In fact he drove him from Melbourne to Liverpool for that purpose. He said that intervention occurred during an acute phase in the applicant’s life and he responded well to the program. Part of its objective was to isolate persons from their previous community but its downside was the failure to equip persons – no less the applicant – from learning to deal with the temptations of drug use when released. He recalled that when the applicant returned to Melbourne he soon became involved again in the community which consumed and trafficked in drugs.
23. Mr Jordens said that he and other person like him refer to persons who are affected by addictive substances as suffering from a relapsing condition. In his experience, drug use and the consequent addiction does not discriminate between persons irrespective of their background. He thought that the risk to the applicant of relapsing to heroin use will be a life long challenge. He thought that he would be affected by the environment in which he resides. He thought the applicant was vulnerable to addiction because he has few support or coping mechanisms available to him. He was aware the applicant has been affected by the consumption of benzodiazepam type medications which he thought was a bigger concern than the consumption of heroin. He regarded drugs of that type as being easily accessible to him and other persons. He is aware that benzodiazepam medication was given to the applicant by other persons.
24. Mr Jordens was hopeful that the recent period in migration detention has impressed upon the applicant that it is unlikely that the respondent will give him any more chances of residing in Australia. It was hoped that he would understand that he must abstain from all drug use into the future. He thought he would continue to comply with the methadone program which he had been undertaking for some years and was impressed by his willingness to take that medication, because in his experience in the Vietnamese community, methadone was regarded as substituting one drug for another (heroin). By his continuing use of methadone, Mr Jordens was hopeful the applicant will give himself the chance of ending his association with heroin. It was his opinion that if the applicant is allowed to live in Australia, that he should be released into a therapeutic community environment for at least 12 months similar to the GROW program he successfully completed in New South Wales. However, in addition to that environment, he should also be supported upon release into the community.
25. In cross‑examination, Mr Jordens was taken to his statement of 14 October 2005 which is found within the T‑documents. At page 6 he recorded that the respondent had not acknowledged the crimes that the applicant did not commit in his struggle with addiction. By way of explanation, Mr Jordens said that his experience in the Vietnamese community demonstrated that Vietnamese persons are less likely to commit offences against the person than persons of Anglo-Saxon background. In his experience, Vietnamese persons regard drug offences as less of an offence because it doesn’t hurt anyone. Additionally, it was his experience that trafficking drugs by Vietnamese persons is regarded as offering a service.
26. Mr Jordens did not condone the use by the applicant of cannabis but said that it was preferable to consumption of heroin and benzodiazepams. He thought that Mr Tran did not fully comprehend the dangers of those drugs despite having had surgery to repair necrotic arteries in his leg following repeated injection of drugs.
dr david jacka
27. Dr Jacka is presently working in Vietnam as a consultant to the World Health Organization. He is engaged in establishing a methadone program in Vietnam which does not now presently exist. He previously worked as a medical practitioner at the Turning Point Alcohol and Drug Centre in Fitzroy and has known the applicant for many years. He lodged a statement dated 6 April 2007 which was received into evidence and gave his evidence by telephone from Vietnam.
28. He said that when he first met the applicant he was chaotic and disturbed. In his experience persons who are heroin dependent live a chaotic life which becomes worse as the dependency increases. Those persons are also disturbed emotionally by the chaos in their life. He thought the applicant was a sensitive person who was disturbed by the chaos in his life. He met and consulted with him on a number of occasions over many years and after a period of having lost contact, he consulted with him in again in February this year. He said that the applicant has not recovered from heroin addiction and he was in continuing need of methadone and psychosocial supports. Additionally he was physically unwell compared to when he first met him in the mid 1990’s and he thought that continuation of methadone was essential for his physical and mental health. Conversely, he said that his physical and mental health would deteriorate if the methadone program was discontinued.
29. Dr Jacka said that there a methadone program does not exist in Vietnam. Additionally, he said there were limited needle and syringe exchange facilities and in the event that the applicant was returned to Vietnam, he was likely to return to heroin use, would not have access to methadone and was likely to contract HIV. He said that in his experience treatment of heroin affected persons in Vietnam is in detention type facilities. He thought that the applicant would be a high profile person if he was returned to Vietnam because he would be observed by authorities and in the event that he used heroin, he would be incarcerated into a labour camp. He thought the applicant was at significant risk of being out of control in the event that he returned to Vietnam because of the absence of treatment or therapeutic support programs which presently were limited only to some persons who seek treatment for HIV.
30. Dr Jacka said that it was not expected that a methadone program would be established in Hai Phong and Ho Chi Minh City before the end of this year and it was unlikely that in the event that the applicant was returned to Vietnam that he would be able to access those programs. He said access to methadone will only be available to persons who are registered as residents of those cities and who can prove residency by papers or other documented identification issued by the Government. Whilst he did not qualify himself as an expert with respect to residency qualification, he said it was common knowledge throughout Vietnam that documented identification was necessary in order to access any government services. He said that the applicant would not qualify for such documents because he has not been a resident of those cities and would be likely only to attain residency qualification from the province where he was born (which is outside Hai Phong and Ho Chi Minh). Additionally it was his experience that the HIV treatment program currently operating in Vietnam is only available to persons who have identification documents.
31. With respect to the consultation with the applicant in February of this year, Dr Jacka said that he was satisfied that he remained heroin dependent, that his life was unstable and consumption of methadone was still necessary. He said the consultation did not discuss the effects of benzodiazepams and cannabis but consumption of those substances was regarded by Dr Jacka as consistent with the applicant’s chaotic and unstable lifestyle which, in his experience, was common to other persons who have been addicted to heroin.
direction 21
32. Part 2 of Direction 21 applies because the applicant does not pass the character test. A person will have failed the character test if they have a substantial criminal record which includes by definition having been sentenced to a term of imprisonment for 12 months or more (refer s 501(6) and (7) of the Act). Mr Tran was sentenced to an effective term of imprisonment of 12 months on 2 April 2001 and for one year and two months on 10 July 2001. Because the applicant does not pass the character test regard must be had to the matters contained within Part 2 of Direction 21 when exercising the discretion to decide whether Mr Tran should be permitted to remain in Australia.
33. Part 2 of Direction 21 directs that decision-makers need to balance a number of important factors when deciding whether to cancel a visa. Regard must be had to three primary considerations which are also defined by Direction 21, that regard must be had to the importance placed by the Government on those considerations but a balancing process which takes into account all relevant considerations should be adopted.
34. The primary considerations defined by Direction 21 are:
(a)The protection of the Australian community; and members of the community;
(b)The expectations of the Australian community;
(c)The best interests of the child or children in cases involving a parental or other close relationship between a child or children and the person under consideration.
35. Each of the above considerations contains a number of stated criteria which must also be considered.
36. Direction 21 – by the volume of stated criteria – places considerable importance on the primary consideration of the protection of the Australian community and its members.
37. The first of those criteria is the seriousness and nature of the applicant’s conduct. Specifically it is recorded that the possession and selling of illicit drugs – heroin is specifically mentioned – is regarded as being very serious and specifically with respect to drug trafficking it is to be viewed as completely unacceptable to the community. Few people would disagree with the sentiment inherent by this criteria. Many people are aware that the consumption of drugs of addiction – particularly heroin – has been responsible for illness and death to many people. It has affected the families and friends of those addicted to drug consumption. Those affected by drugs have frequently been engaged in other acts of criminal activity either to satisfy their addiction or because of it. Those that reside in Australia by the permission given by a visa should have no confidence that they would be permitted to continue to reside here if they engage in activity associated with illicit drugs of dependency or addiction.
38. Additionally, the criteria examining the seriousness and nature of the conduct refers to robbery and home invasion. The applicant has been engaged in activity also of that type to the extent that he has been convicted on two occasions of aggravated burglary. That is to say, on two occasions he violated the privacy and security of a person’s private domestic premises by entering without permission and whilst those persons were present. There is no evidence of any physical harm to those persons but there was evidence that on at least one of those occasions the person residing was extremely frightened.
39. Mr Tran has been convicted of the offences associated with his drug use and with burglary. He has served extensive terms of imprisonment. Despite having two previous warnings – after which he continued to engage in criminal activity – there is some evidence that he has been more compliant with the methadone program, he does not associate with other persons who use heroin, he has mainly resisted consumption of benzodiazepine medication and presently enjoys the confidence of Mr Jordens that in the event of him entering into a structured therapeutic program away from past influences, there is a significant chance that he will no longer engage in the conduct which has given rise to the notice that has brought him before this Tribunal namely, the intention on the part of the Minister to deny him the privilege of remaining in Australia.
40. It would appear that the applicant has engaged in drug activity for his own consumption – and to satisfy subsequent addiction – and has trafficked only for the purposes of raising monies to purchase heroin for his own use. Of course he has exposed others to heroin and probably caused or influenced their addiction.
41. Considerable weight should be given to this criteria but lessened slightly by reason of him having been punished by periods of imprisonment, by his recent attempts to remove himself from others who engage in heroin use, not having used heroin since 2003, not having been imprisoned for three or four years and having an expressed and actual commitment to reducing or ending his addiction by his commitment to the methadone program.
42. Another criteria under the primary consideration of the protection of the Australian community and its members is whether there is any likelihood that the conduct may be repeated. The criteria records a person’s past criminal history as being highly relevant in assessing the likelihood of re‑offending. If Mr Tran was assessed in 2003, it would more than likely be decided that the risk of recidivism was extremely high. At that time he had multiple convictions over many of the previous eight years associated with his drug use. He re‑offended after being engaged in the GROW program in New South Wales, he was influenced by other associates and despite the intervention by professional agencies attempting to help him, he did consume heroin – although infrequently – but also benzodiazepams and cannabis. But since 2003 it appears that he is making progress towards becoming a more mature and stable person. He has offended and been convicted, but those offences have been at the lesser end of the scale. On the police records lodged by the respondent, the last conviction for traffic in a drug of dependence was in August 1999. Since 2003 there appears to have been more of a commitment towards reform and an appreciation of the seriousness of his past conduct. In the event that he does enter a therapeutic program such as he completed in New South Wales (refer evidence of Mr Jordens) there is much to indicate that he would enjoy good prospects of rehabilitation and subsequently remain free of drug abuse and associated criminal activity.
43. The remaining criteria under this part concerns general deterrence and whether there is a likelihood that visa cancellation would prevent or inhibit like offences being committed by other persons.
44. This criteria has been the subject of a number of decisions in this Tribunal and the Federal Court. It is impossible to deal with it with any certainty. On the one hand persons in a similar position to Mr Tran might comprehend that continuing to behave in a way similar to him, might expose them to visa cancellation. It would be hoped in those circumstances they would desist from that type of behaviour. On the other hand, there is nothing to indicate that these proceedings and the outcome will be known by a broader community.
45. In broad terms, it would be difficult to deny the stated objective by this criteria namely, general deterrence is an importance factor in deciding whether to cancel a visa, that cancellation may deter others from committing similar offences and visa cancellation with respect to persons who have been engaged in criminal activity may discourage those persons from continuing to engage in that activity.
46. The second primary consideration is the expectation of the Australian community.
47. The Australian community would expect non-citizens to obey the law and may be of the view that if laws are broken that the right of the non-citizen to continue to reside in Australia should be questioned. That of course is a matter of degree and it is my view that fair minded Australian citizens would examine the circumstances of the non-citizen – including the nature of the criminal activity – before rushing to judgement. Equally it is my view that members of the Australian community would acknowledge attempts made by non-citizens to rehabilitate or reform, whether there is an expression of remorse, whether there is an acknowledgement of the harm that may have been committed and whether there is a likelihood of abstinence from future criminal activity. It would be my view that if the circumstances of Mr Tran were known and examined and the impact upon him understood, that despite the nature of his criminal activity, the majority of fair minded Australian citizens would not conclude that it would be appropriate to cancel his visa.
48. The remaining primary consideration is the best interest of the child.
49. Mr Tran does have a daughter, Jessica, (an Australian citizen) born following a relationship he had with Linda Chau. It would appear that the applicant has had little, if any, contact with Jessica. It would appear from the evidence heard that he has been denied contact with her. Nothing is known about the consequences to Jessica by the absence of her father or whether she is aware that her father resides in Australia. Equally nothing is known about whether she would be adversely affected if he was removed and lived in Vietnam. It would of course be preferable that he did have contact with her and that she enjoyed contact with him. The chances of such a relationship would appear to be, at least immediately, remote. But of course it would be hoped that the applicant could enjoy a relationship with his daughter in the future but that would appear subject to him continuing to make progress with his rehabilitation and reform. Presently it is difficult therefore to give any weight to the criteria of what is in the best interest of the child in the absence of virtually no relationship since birth and no immediate prospect of a relationship into the future. These sentiments are probably consistent with the criteria found at paragraph 2.16(b) of Direction 21, that is, a hypothetical prospect of developing a relationship.
other considerations
50. Without in any way excusing or failing to appreciate the repulsive nature of trafficking in drugs, the personal circumstances of Mr Tran since his birth must be considered.
51. His father was killed when he was a baby by a regime which now governs Vietnam to which he is at risk of being returned. He has not ever seen a photograph of his father and has not ever enjoyed the stability of a family or of two parents. Indeed he has not enjoyed the stability of one parent because he was abandoned by his mother and placed in the care of his grandmother until she decided that he should be placed in a detention facility in another country – Malaysia. Whether that was intended to give him an opportunity to ultimately live in another country is unknown but he did travel to Malaysia as an infant, unaccompanied, by boat during a journey during which he said he was scared. He lived in that facility until he was 18 and had the benefit of limited education facilities available to him as provided by priests and nuns. He travelled to Australia having been sponsored by a relative and when he returned to Vietnam a short time later to marry his cousin’s sister, he was denied the opportunity of a reunion with his mother. Ultimately his wife joined him in Australia but that relationship broke down. Thereafter his drug habit commenced and on his description, after a period of sadness. He did travel to New South Wales and worked with another relative in a clothing factory and from all accounts it appears that he was exploited. He later made some progress in the GROW facility in Liverpool but upon his return to Melbourne – largely by his association with former colleagues and by the absence of adequate support or therapeutic facilities – he resumed criminal activity. Whilst it would appear that he did enjoy a relationship with Linda Chau and a daughter born of that relationship, he has been denied access to her. In recent years, the applicant appears to have made a genuine attempt at reform and rehabilitation. He acknowledged during these proceedings his regret and remorse at past activity. He has abstained from association with former colleagues and has expressed an understanding of the harm caused to him and others by heroin. He has, at least in recent years, been faithful to the opportunity to take methadone in order to relieve his addiction.
52. I was very impressed by the evidence given by Mr Jordens and to the contents of the statements that he provided. I agree with his observations of the applicant being a vulnerable person who does need to have continuing therapeutic supervision and assistance. He does, in my view, need to have ongoing counselling and instruction to gain insight into his vulnerabilities and to achieve an appreciation of him having to work very hard over many years to achieve a degree of stability and confidence in his ability to abstain from harmful addictive substances.
53. Equally, I was impressed by the evidence of Dr Jacka. I accept that there presently does not exist a methadone facility in Vietnam, that even in future years if such facilities do exist it would be unlikely that Mr Tran would be able to take advantage of them because of the absence of residency documentation. It would appear also that he would be at considerable risk of resuming a heroin habit and contracting HIV. The treatment facilities in Vietnam cannot be compared to those that exist in Australia to the extent that it would be likely that he would be incarcerated.
54. Mr Tran has now had three warning notices from the Minister. In the event that he is permitted to remain in Australia it is unlikely that he would successfully challenge a fourth notice. If he re‑offends it is likely that he will be denied the trust that has been placed in him by agency professionals who have expressed a willingness to assist him and encourage his rehabilitation.
55. It is not my view that Mr Tran should be returned to Vietnam. To do so would return him to a country where he would be able to comprehend the language but it being a place where he lived only as an infant and then for about three months in 1993. His mother is still alive but there is nothing to indicate a relationship with her could be resumed. His grandparents are deceased. There is no evidence that he has any friends in Vietnam. There is certainly no evidence that he has any place of abode or any prospect of employment. There is no adequate treatment facility available to him, methadone would not be available and he would be severely at risk of resuming his drug addiction. His present vulnerability would cause him to be unstable, insecure and probably chaotic as was the opinion of Dr Jacka.
56. Most of Mr Tran’s adult life has been spent in Australia. He now lives in a community where he has access to a wide range of treatment and counselling type facilities, staffed and managed by persons who are prepared to assist him and encourage him to reform and rehabilitate. There is evidence that he has started to appreciate the seriousness of his past conduct in terms of the injury to others and to himself. His stated intention to obtain employment I think is naïve in the absence of entering into a therapeutic and residential program similar to that which he completed with GROW in New South Wales. Such a program has been recommended by Mr Jordens and whilst it would appear that there is a waiting list, that opportunity will be ultimately available to him. With ongoing support upon completion of the program there is much to indicate that Mr Tran would remain drug free and would not re‑offend. Fair minded, compassionate Australians would think it wrong to export him, when his future in Vietnam would appear utterly hopeless. The decision under review at paragraph 21 acknowledges that returning to Vietnam would cause considerable hardship. I wonder whether the decision would have been made to cancel his visa if the decision‑maker had access to the documented evidence obtained for this review.
57. Considerable weight attaches the gravity of the applicant’s past conduct but not so much as to tip the scales in favour of visa cancellation. For the reasons given above, I am of the view that the decision under review should be set aside and in substitution it is decided that the visa presently held by him should not be cancelled.
58. I also wish to record with appreciation the assistance given to the Tribunal by Mr Hughan who appeared pro-bono.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 11 April 2007
Date of Decision 19 April 2007
Counsel for the Applicant Mr G Hughan
Solicitor for the Applicant Ms P Jamieson
Solicitor for the Respondent Mr D Brown
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