Tran and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 881

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 881

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   V2001/185

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VAN NGHIA TRAN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date5 September 2003

PlaceMelbourne

Decision The decision under review is affirmed.

[Sgd S P Estcourt]

Deputy President

CATCHWORDS

Immigration - deportation - causing serious injury intentionally - deportable offence - other offending - seriousness and nature of deportable defence - deportation order affirmed.

Migration Act 1958 – s200

Re Jacques Maiorana and Minister for Immigration, Local Government & Ethnic Affairs (1993) 31 ALD 352

REASONS FOR DECISION

5 September 2003 Mr S P Estcourt QC., (Deputy President)          

1.      The decision of the Tribunal in this case is that Mr Tran be deported from Australia in accordance with the decision made by the Minister on 28^th January 2000 based on his conviction for causing serious injury intentionally, for which he was sentenced to three years imprisonment, with two years suspended.

2.      The reason for the Tribunal’s decision is that the seriousness and the nature of the offence for which Mr Tran is to be deported outweigh all of the other considerations which are relevant for the Tribunal to take into account in considering Mr Tran’s application. 

3. Mr Tran’s application to the Tribunal is to review the decision of the Minister, ordering his deportation pursuant to s200 of the Migration Act 1958 (“the Act”).

4. Section 200 of the Act provides that the Minister may order the deportation of a non‑citizen to whom the Act applies.

5. Section 201 of the Act provides that s200 applies to a person who is a non-citizen and who is convicted of an offence committed when that person had been in Australia as a permanent resident for a period of less than 10 years.

6.      Mr Tran was born in Saigon in Vietnam on 30^th June 1971.  He came to Australia on 23 June 1990, under a visa granted as part of a special humanitarian program.  He was not an Australian citizen and he had been in Australia for a period of 7 years and 4½ months when he committed the offence of causing serious injury intentionally.

7.      Mr Tran’s record of convictions is as follows:

15/06/94	Fail to stop after accident	1 month (susp.)
11/12/96	Loiter in a public place	Fined $300
15/08/97	Theft	Fined $250
26/03/98	Trafficking and using heroin	12 months (susp.)
03/07/98	Causing serious injury intentionally	3 years imprisonment (2 years susp.)
07/08/00	Possess Temazepam	4 months ICO
21/08/00	Trafficking in heroin	6 months (2 months susp.)
21/03/01	Possess heroin and breach of suspended sentence	2 years (susp.) ordered to take effect

8.      Whilst it is permissible to consider subsequent offending which places the deportable offence in the context of the time when the power to deport is being considered [Re Jacques Maiorana and Minister for Immigration, Local Government & Ethnic Affairs (1993) 31 ALD 352 at [18]], the Tribunal does not place great weight on offences committed by Mr Tran other than the deportable offence, given that it appears that his heroin usage and the associated offending must be regarded in the context of a failure of community services to reach Mr Tran until quite recently and since then his real prospect of overcoming his heroin addiction. The decisive factor in the exercise of the Tribunal’s discretion in this case is the seriousness and nature of the deportable offence.

9.      Mr Tran told the Tribunal that on 6 November 1997 he was living with his sister and brother-in-law and was in the kitchen preparing a meal.  His brother-in-law swore at him and kicked his left leg, which had been injured in a car accident in 1997 and which as a result is deformed.  Mr Tran said he asked his brother-in-law to stop kicking him, but he said that he would kick him some more.  As a result Mr Tran attacked his brother-in-law with a knife with a blade of about 25cm.  He said he had to take three or four steps to reach the knife and he said he stabbed his brother-in-law with it about 3 times.

10.     In sentencing Mr Tran in the Victorian County Court on 3 July 1998, McInerney J said:

“Mr Tran has pleaded guilty to one count of causing serious injury intentionally, contrary to s.16 of the Crimes Act, the maximum penalty for which offence is a period of 20 years.

The circumstances of this offence, unfortunately, are all too common and also all too simple.  There was a domestic argument within the home between Mr Tran and his brother in law.  The end result of that is that under the pressure of that argument, Mr Tran utilised what essentially can be described as a cleaver, to assault his brother in law to the extent that he almost opened up his brother in law’s upper body..  One only needs to look at the photographs in Exhibit A as to the consequences to see the dimension of this injury.  Suffice to say that his brother in law was taken in a critical condition to the Western Hospital, where he was on the intensive list for a period of 5 days.  Fortunately, he has made an adequate recovery but, perhaps, even more fortunately for Mr Tran, he did not die…

… I accept that there was some form of provocation, not legal provocation …

Mr Tran is 26.  He is a person with no priors.  He has no violence at all in his antecedents, and he has been particularly cooperative.  I accept his evidence that he has regret for his actions, and has expressed remorse for his actions.  There was, in the plea, no dispute that a period of imprisonment was called for, given the serious nature of the offence …

Taking all of those matters into account, as a result of those particular reports, I have determined, unfortunately, that even with that background, the circumstances of this offence, its intensity and its seriousness is such that there is no alternative but for a period of immediate imprisonment to be imposed.”  (emphasis added)

11. In exercising its unfettered discretion under s200 of the Act as to whether to order a person’s deportation, the Tribunal is bound to have regard to the Minister’s General Direction – Criminal Deportation – No.9.

12.     Under that Direction, the degree of hardship which may be caused to the potential deportee or to Australian citizens who are members of the potential deportee’s family are two relevant “other considerations” which must be balanced against two “primary considerations”, namely the expectations of the Australian community and the best interests of any child.

13.     The first of the two “primary considerations” is comprised of two aspects, namely:

(a)the expectation that the Australian community will be protected and not put at risk;

(b)the expectation that non‑citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.

14.     Further, pursuant to the Direction, the following factors are relevant to an assessment of the level of risk to the community and the need for its protection:

(c)the seriousness and nature of the crimes; and

(d)the risk of recidivism; and

(e)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

15.     While Mr Tran’s deportable offence, namely causing serious injury intentionally was committed in circumstances of some provocation, although as observed by McInerney J in passing sentence, “not legal provocation”, it is clear that the offence is a very serious one.  The penalty of 3 years imprisonment, albeit with 2 years suspended upon conditions, reflects that fact.  Additionally, under the Direction it is the Government’s view that assaults or any other form of violence against persons is considered by the Government to be very serious.  

16.     As to the risk of recidivism, the Tribunal notes that one of the reports referred to by McInerney J in his comments upon passing sentence set out above was a psychiatric report which concluded that there was no evidence of any mental illness on the part of Mr Tran, and that there was a strong likelihood of his being able to successfully refrain from further violent offending in the future if he could be given the opportunity to address his substance abuse and his lack of vocational skills.  Given that evidence before the Tribunal is suggestive of Mr Tran overcoming his heroin addiction, the Tribunal does not place undue weight on the risk of recidivism, however the violence involved in the disproportionate attack by Mr Tran in response to his brother-in-law’s taunts was deliberate and extreme and absent any psychiatric illness or disorder one could not have complete confidence that Mr Tran’s capacity in this regard would not again manifest itself given similar circumstances.

17.     As to deterrence, in general terms, no doubt Mr Tran’s deportation would likely have an effect on non‑citizens in Australia with respect to the commission of crimes of violence.

18.     As to the best interests of any child under the age of 18 who is in a close relationship with the potential deportee, it is suggested on behalf of Mr Tran that he has a very strong bond with his sister’s 9 year old son, Andrew Tho.  The Tribunal does not accept this suggestion, in view of the extensive periods of Mr Tran’s incarceration since being sentenced on 3 July 1998.

19.     The other important consideration which must be weighed into the balancing which is involved in the exercise of the Tribunal’s discretion is the hardship to Mr Tran and the members of his family which might be brought about as a result of his deportation. 

20.     As the Tribunal has already noted, Mr Tran was born in Saigon on 30 June 1971.  His family suffered great hardship by reason of the war in that country, and Mr Tran fled there with his sister in 1989.  They arrived in Australia on 23 June 1990 after spending time in Malaysia, (having arrived there after two days at sea).  Mr Tran’s mother did not come to Australia until November 1995.  She left behind her one son, two years Mr Tran’s senior, who still resides in Vietnam and another two sons, who reside in the United States of America.

21.     Mr Tran’s mother is now 68 years old, and her husband having passed away many years ago, her life and her happiness centres upon being able to be near her daughter, her son (Mr Tran) and her grandchildren.  She has become depressed and has experienced feelings of helplessness as a result of Mr Tran being imprisoned and permanent separation from him, which is the almost inevitable consequence of deportation, would bring great sadness to her.  She finds the prospect of her son being deported to Vietnam terrifying.

22.     Mr Tran himself left Vietnam some thirteen years ago, and has not returned there since.  He does not know where his brother is in Vietnam.  He has no assets and few skills, apart from limited work experience as a sewing machinist and his prospects in Vietnam must be regarded as poor. 

23.     After anxious consideration of all matters relevant to the exercise of its discretion in this case, the Tribunal concludes that the expectation of the Australian community that it will be protected and not be put at risk, given the seriousness and nature of Mr Tran’s crime, outweighs the considerations of hardship to him and his mother as a result of his family in Australia being separated for a second time. 

24. Accordingly the formal order of the Tribunal is that the decision of the respondent’s delegate of 28 January 2000 pursuant to s200 of the Migration Act 1958 to deport the applicant from Australia on the basis of his conviction for intentionally causing injury on 3 July 1998 is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  10 July 2003 
Date of Decision  5 September 2003
Counsel for the Applicant         Mr Greg Hughan  
Solicitor for the Applicant            Access Law    
Counsel for the Respondent       Mr Tony Fell
Solicitor for the Respondent       Australian Government Solicitor