Tran and Minister for Immigration Multicultural and Indigenous Af Fairs

[2003] AATA 814

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 814

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2002/848

GENERAL ADMINSTRATVE DIVISION		)
Re		BI VAN TRAN

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President, Don Muller

Date20 August 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision to order the deportation of Bi Van Tran.

.............SIGNED..........................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

MIGRATION - deportation – applicant entered Australia as a refugee – conviction of possession of heroin for supply and subsequent conviction of trafficking in heroin when applicant was a permanent resident for less than 10 years - considerations of the expectations of the Australian Community against the best interests of five children of the Applicant – hardship to the Applicant’s wife

Migration Act 1958 sections 200, 201,499

Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98

REASONS FOR DECISION

Deputy President, Don Muller      

1. This is an application made by Bi Van Tran (“the Applicant”) for review of a decision of the Minister for Immigration Multicultural and Indigenous Affairs, made on 8 March 2000, to order the deportation of the Applicant from Australia pursuant to section 200 of the Migration Act 1958 (“the Act”).

2.       The Deportation Order contains the following statements which set out the grounds for the deportation:

“AND WHEREAS the said Van Bi TRAN was convicted at the Brisbane Supreme Court in the State of Queensland on the 25^th day of March 1996 of an offence/s namely Counts 1 and 2 – Unlawfully Supply a Dangerous Drug namely heroin, and Count 3 – Unlawful Trafficking in a Dangerous Drug namely heroin, which was/were committed between 17 March 1994 and 29 March 1995, and for which he was sentenced to imprisonment for 3 years, concurrent, to commence on 28 March 1995 (Counts 1 and 2) and 15 years (Count 3) cumulative upon Counts 1 and 2 sentences, with a recommendation that he be considered eligible for parole after serving 6½ years.  On the 20^th May 1996, the Court of Appeal allowed an appeal and ordered that the sentences be made concurrent and that 370 days declared to be time already served in pre-sentence custody.

AND WHEREAS at the time of commission of the said offence the said Van Bi TRAN was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand citizen exempt non-citizen, or special category visa holder for less than ten years.”

3.       At the Hearing the Applicant was represented by Mr. O’Gorman of counsel and the respondent by Mr. Gallo, solicitor.

4.       The evidence before the Tribunal included the following documents :

(a)The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 , Exhibit 1;

(b)Statement of Mr Bi Van Tran dated 28 March 2003, Exhibit 2;

(c)Statement of Mrs Bernadette Tran dated 28 March 2003, Exhibit 3;

(d)Report of social worker, Susan Lorraine Lewis dated 3 March 2003, Exhibit 4;

(e)Bundle of Bi Van Tran’s Sentence Management Reports, Exhibit 5;

(f)Bundle of Case reviews of Bi Van Tran, Exhibit 6;

(g)Bundle of courses completed by Bi Van Tran, Exhibit 7;

(h)Bundle of letters to Bi Van Tran regarding drug testing while in prison, Exhibit 8;

(i)Letter dated 17 July 1998 regarding the Applicant’s appeal, Exhibit 9;

(j)Letter of Official Visitor dated 22 July 1998, Exhibit 10;

(k)Department of Foreign Affairs and Trade Reports on Vietnam, Exhibit 11; and

(l)Facsimile from the Royal Children’s Hospital (Melbourne) dated 28 April 2003, Exhibit 12.

5.       The Tribunal also heard oral evidence from the Applicant, Bernadette Batshon (the Applicant’s wife) and Ms. Garner, an officer of the Department of Immigration Multicultural and Indigenous Affairs.

THE LEGISLATION

6. The legislation relevant to this review is contained in sections 200, 201 and 499 of the Act and provides as follows:

“Division 9 – Deportation

200  Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom this Division applies.

201  Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

Where:

(a)  a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b)  when the offence was committed the person was a non-citizen who:

(i)  had been in Australia as a permanent resident:

(A)  for a period of less than 10 years;  or

(B)  for periods that, when added together, total less than 10 years;  or

(ii)  …

(c)  the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

499  Minister may give directions

(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)the performance of those functions;  or

(b)the exercise of those powers.

(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)A person or body must comply with a direction under subsection (1).

(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)Subsection (1) does not limit subsection 496(1A).”

7. The Minister has made a Direction pursuant to s.499 of the Act. It is headed “General Direction – Criminal Deportation – No 9” and dated 21 December 1998. Those parts of particular relevance to this review are:

“6. In making a decision whether or not to deport a non-citizen, there are two primary considerations:

(a) the expectations of the Australian community; and

(b) in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the  child or children.

7. In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are:

(a) the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and

(b) the degree of hardship to the Australian citizens or permanent residents that would reasonably be expected to flow from deportation.”

“9.  It is the Government’s view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime.  In particular, it is the Government’s view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community.  The Government considers that children and young people are especially at risk in this area.   The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders.  This is of particular importance when the offences in question are in relation to drugs and crimes of violence.  A decision maker should have due regard to the Government’s view in this respect.”

“The seriousness and nature of the offence

11.      It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

(a)       the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.

·     Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people.

·     The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders.  It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.

·     Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.

THE BEST INTERESTS OF THE CHILD

16.  It is the Government’s view that the decision maker must determine the best interests of any children aged less than 18 years who are in a parent-child or other close relationship with the potential deportee.

OTHER CONSIDERATIONS

21.  It is the Government’s view that in considering the issue of deportation other matters, although not primary considerations, will be relevant.  It is appropriate that these matters be taken into account but given less weight than the primary considerations.  These matters include:

(a)       the degree of hardship which may be suffered by the potential deportee;  and

(b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family (15) (other than children whose best interests are a primary consideration).

Decision makers should have due regard to the Government’s view in this respect.

The degree of hardship which may be suffered by the deportee

22.  It is the Government’s view that factors to be considered here include:

(a)whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;

(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government’s intention that such people will never be deported.

(c)the degree and extent of the potential deportee’s ties with the likely country of return;

(d)       the strength of other family, social or business ties in Australia.”

BACKGROUND

8.       The following facts are not in dispute and the Tribunal finds:

(a)The Applicant was born in Kien Giang, Vietnam on 12 March 1966.  The Applicant left Vietnam at the age of 18 years leaving behind his parents and four siblings.  He arrived in Perth, Australia as a refugee on 5 December 1985 at the age of 19 years and 9 months.

(b)The Applicant lived in Western Australia for his first four years in Australia.

(c)In 1989, the Applicant went to Melbourne to live.  He met his future wife, Bernadette Batshon soon after he arrived in Melbourne.

(d)Ms. Batshon was born in Beirut, Lebanon in 1969.  She arrived in Australia with her family, via Egypt in 1988.  She is fluent in Arabic.

(e)Ms. Batshon gave birth to her first child to the Applicant, a son, on 17 January 1990.

(f)The Applicant and Ms. Batshon were married on 17 November 1990.

(g)The Applicant and Ms. Batshon both have a very poor grasp of English.  The Applicant does not speak Arabic.  Ms. Batshon does not speak Vietnamese.

(h)In 1991, the Applicant and his wife separated.

(i)Ms. Batshon gave birth to a second son on 25 September 1991.  It was not made clear to the Tribunal whether the birth occurred before or after the separation.

(j)In 1992, the Applicant moved to the Gold Coast in Queensland, where he obtained work in his uncle’s restaurant.  His wife and children remained in Melbourne.

(k)In an attempt to keep the marriage together, Ms. Batshon visited the Applicant in Queensland from time to time, but she returned to Melbourne to live after each visit.

(l)The Applicant returned to Melbourne for brief visits on five occasions between 1991 and 1994.

(m)Ms. Batshon gave birth to three more children:  a girl on 24 March 1993;  a girl on 27 October 1994 and a girl on 29 May 1995 (which was after the Applicant had been taken into custody);

(n)The Applicant has never paid any money to Ms. Batshon by way of maintenance or support.  She and her children have existed solely on social security benefits and the generosity of her family, since 1991.

(o)On 17 March 1994 the Applicant sold to an undercover police officer 0.213 grams of heroin for $250.00.  Then on 22 March 1994 another undercover police officer made arrangements to meet the Applicant.  The undercover police officer was handed a package by a man called Le, then the Applicant who was watching nearby approached the police officer and handed him a second package.  The first package contained 0.283 grams of heroin and the second package contained 2.08 grams of heroin.

(p)On 22 March 1994 the Applicant was arrested and was charged with two counts of Unlawful Supply of a Dangerous Drug on 17 and 22 March 1994. The Applicant was released on bail on 28 March 1994.

(q)While on bail, between 29 January 1995 and 29 March 1995, the Applicant negotiated 11 sales of heroin. The total amount of money he received for these transactions was $26,230.00 and the quantity of pure heroin that the Applicant dealt with was 24.736 grams.

(r)The Applicant was arrested on or about 28 March 1995 and a further charge was brought against him of Unlawful Trafficking in a Dangerous Drug namely, heroin, between 29 January 1995 and 29 March 1995.

(s)The Applicant initially pleaded not guilty to the charges of “Supply”. He later pleaded guilty to the Charge of Trafficking and then changed his not guilty plea to a plea of guilty to the “Supply” charges.

(t)On 25 March 1996, in the Supreme Court of Queensland, Shepherdson J sentenced the Applicant to:

(i)On the two counts of Unlawfully Supply a Dangerous Drug (on/about 17 and 22 march 1994), three years imprisonment on each count to be served concurrently.

(ii)On the count of Unlawful Trafficking in a Dangerous Drug between 29 January 1995 and 29 March 1995, imprisonment for 15 years, cumulative upon the first two counts.

(u)In the course of his sentencing, Shepherson J said:

“There is no doubt in my mind that the illegal use of heroin is a cancer in our society. By your plea of guilty you have shown that you have been part of this dreadful trade. Indeed, I assess you as having been fairly high up in the hierarchy of those involved.

You have made your involvement in heroin trafficking your business. It has been a source to you of considerable income over a period of two months. You almost had the $22,500 in your hands before the police came. In two months you actually supplied heroin to 11 known purchasers at a total cost of $26,230, and you were about to conclude a supply for another $22,500 when the police raided the premises where the sale was about to be concluded.

In the 11 actual supplies, which are part of the trafficking charge, the total weight of actual heroin was 24.736 grams, and in the final almost concluded sale the weight of actual heroin was at least 16.649 grams.

In my view, the material on which Miss Dick relies to justify her submission that you were an addict or a user is too tenuous and it lacks detail. I do not accept that at any material time you were a user of heroin, let alone a person addicted to heroin

…       

I have concluded that your only motive in conducting this trafficking business was profit.

Now, in my opinion, you were, as another judge of this Court once described a trafficker, a perfectly cold-blooded dealer in heroin who has no regard whatsoever for the consequences of your dealings. You do have a prior criminal history. It shows that you were convicted for a breach of the Bail Act, but it is irrelevant, really, when I come to sentence you today. I do not overlook the fact that in 1994 you supplied heroin unlawfully on two occasions and almost twelve months later, while on bail, you intensively trafficked in heroin for two months.”

(v)The Queensland Court of Appeal allowed an appeal on sentence and ordered that the sentences be made concurrent and that 370 days declared to be time already served in pre-sentence custody.

9. On 19 September 1996, Carolyn Seaby, a case officer from the Department interviewed the Applicant, with an interpreter, for the purposes of assessing whether the Applicant should be deported pursuant to section 200 of the Act. In the interview the Applicant stated that he, “.. Felt pretty sad.” about his conviction and referring to the drug trafficking, “He wouldn’t do a silly thing like that again.”  In addition the case officer recorded in interviews with Applicant and also later with his wife that he had four children.  (It was never satisfactorily explained to the Tribunal why the Applicant did not know about the fifth child, nor why his wife failed to mention a fifth child.)

10.     On 5 February 1997, Maria Walker, a case officer from the Department, assessed the Applicant for deportation. She recommended that an order of deportation not be applied to Bi Van Tran.   In her report of her interview with the Applicant she stated:

“Mr Tran stated that he was married and has four children aged between 6 and 1.

…

Mr Tran stated that when he came to Brisbane to work, his wife and children came also . When his wife’s mother became sick she went back to Melbourne to look after her. Mr Tran stated that prior to his incarceration he went back “now and then” to see her.

…

Mr Tran stated that after his release he plans to go back to Melbourne to live with his family and plans to work in a restaurant.”

In her conclusions Ms Walker stated:

“While the nature of Mr Tran’s relationship with his wife is unclear, it is nonetheless considered that Mr Tran has strong family ties in Australia.

…

I submit that the factors in favour of you NOT ordering the deportation of Mr Van Bi Tran outweigh the factors in favour of his deportation. While the offences committed by Mr Tran were extremely serious in nature, given that this is his first period of offending behaviour and his deportation would cause considerable hardship to his family, it is considered that he should be given a second chance.”

11.     On 26 January 1997 Queensland Corrective Services Commission issued an assessment of Bi Van Tran for the Department.  In his report K M Stamm stated:

“The applicant married in 1985 and has four children from that relationship. The applicant’s wife, Bernadette, who was stated as being of Egyptian origin , resides in Victoria with the four children . Mr Tran claims that he and his wife have maintained regular telephone contact, and she and the children have visited twice since the incarceration.

The prisoner is classified as a medium security prisoner on 37 points.

The applicant has not incurred any breaches of discipline during his custodial sentence.

The applicant’s unit and work reports have been positive. He is described as being a keen worker who is both positive and co-operative, however the applicant’s language barrier has made it difficult to interact with staff.

His current plans are to be re-united with his wife and children. Mr Tran stated if he is granted Release to Work or home Detention his wife will relocate to Queensland, however if he is granted Parole, which will allow for him to travel interstate, he will move back to Victoria.

According to the Queensland Corrective Services Risk/Need Inventory, the applicant appears to be a moderate risk of re-offending, with a point score of 14.”

12.     Correctional counsellor, Gail Pipe Martin, prepared a report on 22 January 1999.  She stated that the Applicant has generally been of good behaviour in prison, he has consistently sought and gained employment while in jail and all his work records appear positive.  She confirmed that the Applicant has attended several courses, English as Second Language, Food Handlers Program, Stress Management, and a Cognitive Skills course.  She also confirmed that the Applicant’s intention was to be reunited with his family after he completes his prison sentence. In her conclusions on the risk of recidivism she stated:

“It is difficult to fully assess Mr Tran’s risk of reoffending as a comprehensive criminal history is not available due to his itinerant lifestyle. From the information gathered Mr Tran has a relatively short criminal history and formal records of his  institutional behaviour  has been of a higher standard. ….. If Mr Tran has additional warrants  and charges in other states it may be assumed  that he is a higher risk of reoffending. On the other hand if his current offences were isolated it would be reasonable to believe that he is at far less risk of re offending.

Perhaps the major motivational factors for Mr Tran not to re-offend is his responsibility to parent his four children…What impact this motivation has on Mr Tran ‘s future behaviour may well be gauged by the way he has approached that in the past including the extent of his previous criminal behaviour.”

13.     The Applicant’s wife was interviewed on 21 September 1999 , the notes of interview with Bernadette Batshon stated that :

“I know nothing about what he did until O.. was 6 months old (1992) when a Melbourne social worker told me my husband had to go to jail for doing stuff like drugs. My husband never told me about the problem.

Q Has your husband ever given you or the children money?

No- he never gave us money. I sent him money when he was in jail.”

14.     Ms. Garner of the Department again assessed the Applicant for the purposes of deportation, without an interpreter, on 10 February 1999.

15. A further report was prepared on 11 February 2000 by Ms.Garner, based on the 10 February 1999 interview with the Applicant. She advised the Minister that it was open to him to find that Mr Tran was liable to deportation under the Act.

16. On 8 March 2000 the Minister ordered Van Bi Tran’s deportation pursuant to section 200 of the Act.

17.     On 17 March 2000, Ms. Batshon became an Australian citizen.

EVIDENCE OF BI VAN TRAN

18.     The Applicant gave evidence through an interpreter.  He confirmed that he was born in Vietnam and that upon his leaving Vietnam he left behind his parents and several siblings.  He gave evidence that in Vietnam he used to work on the family farm.  He has had no contact with his family in Vietnam since his incarceration, largely because he does not want his family to know of his imprisonment.

19.     The Applicant gave evidence about the matters not in dispute set out in paragraph 8 above.  He also gave evidence to the following effect:

(a)After his arrival in Perth he obtained numerous cleaning jobs.

(b)He worked in a car factory at Port Melbourne.

(c)He worked in a paper manufacturing factory in Queensland.

(d)He worked on a vegetable farm in Warwick.

(e)He has worked in several restaurants.

(f)He was a user of heroin at the time of the offences but the judge did not believe him.

(g)He has stopped using heroin since he has been in prison and he has never tested positive to drugs since he has been in prison.

(h)During his imprisonment his wife has visited him 20 to 30 times. They keep in regular contact through the telephone and by letters. It is his intention to return to the family after he completes his prison sentence in order to support them.

(i)During his interviews with Ms. Garner, no interpreter was present and he understood very little of what was being asked of him. He signed the bottom of each page of the record of interview, because he was asked to do so.

(j)If he was deported he would have very little support from his remaining family in Vietnam, and he would miss his family and friends in Australia.

EVIDENCE OF BERNADETTE BATSHON

20.     Ms. Batshon gave evidence about the matters not in dispute set out in paragraph 8 above.  She also gave evidence to the following effect:

(a)Even though the Applicant and herself did not speak a common language they developed a close relationship which resulted in their first child being born on 17 January 1990.  They later married on 17 November 1990.

(b)The father of all of her other four children is the Applicant.

(c)Her fifth child was conceived while visiting the Applicant in prison.

(d)She had no knowledge of the Applicant’s drug trafficking activities nor was she aware of the $26,230.00 he received as profits from his drug activities.  She never saw any of it.

(e)She cohabited with another man sometime in 1994 for a short time but is no longer in a relationship with him.  He assaulted one of her daughters on two occasions and the Department of Human Services intervened removing her daughter from the family home.  The daughter was returned to the family home on the condition that Ms. Batshon have no further contact with the man.

(f)She believes that after the Applicant is released they will resume their relationship and he will return to Melbourne to support the family. 

(g)She has visited the Applicant several times since he has been incarcerated. Generally they have kept in touch through regular telephone contact and by letters.

(h)The children miss their father terribly and his incarceration has caused her great hardship.  She often suffers from depression and cries.  She feels that the children need to have their father around in order to develop a good relationship with him and to help her with the parenting of them. She also feels that if he is deported that there would be no one to help her raise her children.

(i)If the Applicant was deported she would not be able to go to Vietnam with him. Her children no longer speak Vietnamese and the younger son is too ill to travel to Vietnam.  In addition her sick son would be unlikely to receive the medical treatment he needs in Vietnam.  He suffers from a soft tissue bowel cancer and a skin disease. In addition to her children’s needs, Ms Batshon also supports her mother who is elderly and ill. She did not believe that she could leave her mother.

THE ISSUES

21.     There is no dispute that the Applicant has been in Australia as a permanent resident, that he has been convicted of an offence which was committed when he had been in Australia for a period of less than ten years and that he was sentenced to imprisonment for a period of not less than one year.  He is clearly liable to be deported.

22.     The Applicant was 28 years of age when he was first arrested in 1994 and he had been in Australia for just over eight years at that time.  He had been in Australia long enough to know that the Australian authorities and the Australian public regarded the trafficking of heroin as a most serious criminal offence.

23.     As a trafficker/supplier of heroin, the Applicant would have known that he was part of a large criminal conspiracy to deliberately flout the laws of Australia.  He would have known that his supplies of heroin came via a chain of criminal activities from growers, refiners, exporters, importers and distributors.  He would have had a reasonable suspicion that in the socio-economic area where he was selling heroin,  most of his customers were financing their purchases by criminally preying on other members of the Australian public.  He would certainly have had a callous disregard for the health and indeed the lives, of the people to whom he sold heroin.

24.     The Tribunal rejects any notion that the Applicant was a naïve young person who did not understand the gravity of the crimes he was committing.

25.     The Tribunal adopts the passage from the judgment of Brennan J in Re Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at page 101 where he said:

“The criminal sale of heroin is an offence which raises a strong case for deportation; whether the offender be a pusher who seeks a profit from a loathsome trade, or whether he be an addict who seeks merely to maintain his supplies of the drug. If the offender be a pusher, he shows a conscious disregard for the lives of his victims, their health and their happiness, which is so gross and so grievous that the prospect of his developing a sense of social responsibility is inevitably suspect; if the offender be an addict, his need is so overpowering that it is folly to think that he could and would refuse to traffic in the drug if the necessity to do so again arose.”

26.     As for the prospect of the Applicant re-offending, there is no objective way of knowing whether or not he would re-offend if released into the Australian community.  The social workers and prison assessors have not been prepared to make a positive statement about the prospect of recidivism.    It is sometimes possible to make an educated guess in the case of certain crimes committed in unusual circumstances.  However, this is not a case where the Applicant committed a crime in the “heat of passion”, in an unusual “one off” situation, which is unlikely to ever be repeated.  Indeed, the crimes he committed were done in a serial way, coldly, and could be repeated. 

27.     It has been said on behalf of the Applicant that he will miss his wife and children.  The Tribunal notes that he left them in 1991 and he has never supported them.  The Tribunal does not accept that the Applicant is a devoted family man.

28.     The Applicant’s counsel submitted that the Vietnamese Government does not accept all criminal deportees and a number of them have languished in Australian jails after serving their sentences. 

29.     However, the Tribunal notes the Respondent’s facsimile dated 16 May 2003 which indicates that a Memorandum of Understanding between the government of Vietnam and the government of Australia came into effect on 15 August 2001.  As from 9 May 2003, 30 criminal deportees have been returned to Vietnam.  The Tribunal takes the view that Vietnam will probably accept the Applicant as it has done with the other 30 deportees.

30.     In considering any hardship suffered by the Applicant, if he is returned to live in Vietnam, the Tribunal notes that he has family in Vietnam and speaks the language fluently.  The Tribunal notes that Vietnam itself is no longer the country the Applicant fled from.  It has a stable system of government and there is nothing before the Tribunal to indicate that the Applicant would suffer persecution if he were to return to Vietnam.  The Tribunal does not accept that the Applicant will suffer any particular hardship if he is returned to Vietnam.  The Tribunal is not prepared to make any value judgments about which country – Australia or Vietnam, has the more desirable lifestyle. 

31.     There is no doubt that the Applicant’s family would love to have a caring husband and a supportive father.  They would be far better off if such a person existed in their lives.  The question is whether the Applicant is the person to fulfil the role that they have in mind.  The Tribunal notes the comments made by social worker, Susan Lewis, in her report dated 3 March 2003:

“108. All 5 children reportedly want their father to return to the family. C.. and C….. do not know their father but have remained in contact with him by telephone and in this manner have established limited relationships with him. Unfortunately, C.. and C… have not been interviewed …as they did not travel with their mother to Brisbane for the interviews. Furthermore, the children have not been observed with their father.

109. Nevertheless, D.., A.. and O.. were interviewed and they have expressed compelling views as to missing their father and needing to have more meaningful contact with him. They very much want their father to return to their family.  They have found it difficult to accept and relate to their peers who have father figures. They have no real understanding of the risks for themselves and the family generally with respect to their father being reintegrated. They do not understand the dynamics of the parental relationship or the implications for the family given that their father has been absent for some 8 years.

110. Clearly the children as well as the adults will face a difficult adjustment process. It is likely that the children will exhibit a range of sentiments in relation to their father, possibly anger, and this may impact deleteriously upon their relationship. A dynamic in this regard will be the historical absence of the father as an authority figure and the likely resistance that the children, particularly the boys, will have towards him in this regard.

111…Clearly D.. and A.., in particular, need a father figure and appropriate role model. As to whether the father can fulfil this role is not clear at this point, given the history of his own personal dysfunction (heroin related offences) absence from the family and lack of involvement therefore in parenting the children…

112 Clearly both parents will benefit from intensive relationship and parenting counselling/programs to assist them to manage reintegration. It may also be in the children’s best interests to undergo counselling to assist them to deal with the issues that they have in relation to their father’s absence from the family and his reintegration.

114  If the father was to be deported at this point the children, particularly the boys, would likely be compromised emotionally and psychologically.

…

117 The children have been born and raised in Australia and appear to have very little exposure to the Vietnamese culture. They appear to affiliate more at this point with the mother’s heritage, in particular they speak Arabic with her and her mother. From the cultural perspective it would benefit the children to have their father involved and to have exposure to his heritage. It is not clear how the parents would manage this at this point but it is an important factor to be considered.

118 In conclusion, the children would benefit from the father remaining in Australia, obviously providing that he does not pose any risk to them through future drug related behaviour.”

32.     The Tribunal accepts that the opinions of Ms. Lewis make good sense.  The children will suffer to some extent if their father, whom they do not know but whom they know exists, is removed from Australia and whose potential as a father is thereby removed for all time.  However, the children may suffer even more if their reunion with their father turns out to be a disaster.  They do not know him.  They do not speak his language and he does not speak either Arabic or English.  They have not been exposed to him or his culture.  He had virtually nothing to do with them when he was free to do so between 1991 and 1995.  They may be better off with a happy notion of a far-away father than with the reality of a less than perfect one in Australia.

33.     The Tribunal is not satisfied that on balance the children would derive any significant benefit from the release of their father into the Australian community.

34.     As for the effect of the Applicant’s deportation on Ms. Batshon, the Tribunal is not satisfied that there is a strong bond between her and the Applicant.  They have seen very little of each other since 1991.  She has not visited the Applicant on 20 to 30 occasions, while he has been in prison, as the Applicant has claimed.  Ms. Batshon gave evidence that she has visited the Applicant several times since he has been in prison.  The records available to the Tribunal show that from the date of the Applicant’s arrest in late March 1995 until 22 January 1999, Ms. Batshon visited the Applicant on four occasions during a fortnight in mid-1997, namely:

27 July 1997 – 12.30pm to 5.30pm

2 August 1997 – 8.30am to 10.30am

2 August 1997 – 11.00am to 12.00noon

9 August 1997 – 8.30am to 10.30am

35.     The Tribunal accepts that it may have been difficult for Ms. Batshon to travel from Victoria to Queensland to visit her husband, but it is hard to accept that if they shared a close bond, Ms. Batshon would make only one trip in four years.

36.     Then there is the question as to why Ms. Batshon did not reveal the existence of the fifth child to either the Departmental representatives or to the Applicant for many years.  Ms. Batshon gave evidence that she did not want the authorities to know that the child had been conceived during one of her visits to the Applicant while he was in prison.  This explanation cannot be correct.  The child was born in May 1995, which means that conception took place in August or September 1994.  The Applicant was free on bail from 28 March 1994 until he was arrested on or about 28 March 1995.  Besides, Ms. Batshon did not visit the Applicant in prison until mid-1997.  The Tribunal prefers not to speculate on the reasons for the non-disclosure of the fifth child for some years. However, it does detract from the notion that there is a strong bond between Ms. Batshon and the Applicant.

37.     The Tribunal does not accept that Ms. Batshon would suffer any significant detriment if the Applicant was deported.

38.     The Tribunal is not satisfied that the protection of and expectations of the Australian community are outweighed by considerations relating to possible hardships expected to be suffered by the Applicant, his wife or his children.

39.     The Tribunal affirms the decision to order the deportation of Bi Van Tran.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President, Don Muller

Signed:          .......................................................................................
            C. O’Donovan, Associate

Date/s of Hearing  6 May 2003
Date of Decision  20 August 2003
Counsel for the Applicant          Mr. D. O'Gorman
Solicitor for the Applicant           Robertson O'Gorman Solicitors
Solicitor for the Respondent     Blake Dawson Waldron