Trang and Minister for Immigration and Multicultural Affairs

[2000] AATA 697

DECISION AND REASONS FOR DECISION [2000] AATA 697

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W1999/388

GENERAL  ADMINISTRATIVE  DIVISION     )          
           Re      Phuoc Dat TRANG          
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal       Deputy President B.M. Forrest     

Date11 August 2000

PlacePerth

Decision      In accordance with s. 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is set aside and the matter remitted to the Minister with a direction that the deportation order be revoked.      
  ........(Sgd. B.M. Forrest)...........
  Deputy President
TRANG and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W1999/388

Deputy President B.M. Forrest

PERTH On FRIDAY, 11 AUGUST 2000

EX TEMPORE REASONS FOR DECISION
Mr Trang - on 24 April 1999, following conviction by a jury, you were sentenced to 2 years imprisonment for aggravated burglary and 2 years imprisonment for unlawful assault occasioning bodily harm, the sentences to be served concurrently for offences which took place on 2 February 1998.
On 15 October 1999 a delegate of the Minister for Immigration and Multicultural Affairs ordered that you be deported form Australia. However the deportation order was defective and on 10 November 1999 a fresh deportation order which is the subject of these proceedings, was made on the basis of the convictions. The deportation order was made pursuant to s. 200 of the Migration Act 1958 ("the Act") which empowers the Minister to order the deportation of a non citizen who, under s. 201 of the Act, has been convicted of an offence for which the person was sentenced to imprisonment for not less than one year and who, at the time of the offence, has been in Australia as a permanent resident for less than 10 years. As at 2 February 1998, the date of commission of the offences ("the deportable offences") grounding the deportation order, you had acquired 9 years and 5 months permanent residence in Australia.
By way of background, you were born on14 June 1970 not in South Vietnam as appears in the s. 37 material before the Tribunal, but in Cambodia, according to your mother.  You spent 3 years in a refugee camp in Thailand before arriving in Australia on 11 April 1990, the holder of Refugee Camp Clearance visa.  You have lived in Australia since.  Your sister Trang Phuoc Nga, who had entered Australia as a refugee in 1988, sponsored you to Australia.  She had also spent time in Thailand in a refugee camp before coming to Australia.
After arriving in Australia you spent a few months living with your sister, then with friends.  You attended English classes for a while but your command of the language is extremely limited – you are able to speak a little but have no literacy skills in English.  Your lack of English has hindered your employment opportunities.  During 1991-1992 you worked in Carnarvon for a fruit and vegetable grower for about 6 months during the harvest seasons.  In 1998 you worked there for 9 months on a tomato farm.  You also worked occasionally as a flower picker.  For other periods you were unemployed.
The facts of your involvement in the events which led to the convictions, the subject of the deportation order, were described in the sentencing remarks of Justice Miller to be:

"The evidence led at trial established that on the night of 2 February 1998 you were recruited from the Bon Phuong pool hall in Girrawheen to go to a fight.  It was your co-accused Nguyen who was responsible for so recruiting you.  You willingly went with a group from the pool hall, who joined a group already outside the pool hall, to a venue where this fight was to occur.
The duplex was pointed out to you in Casserley Avenue, Girrawheen whilst you sat in the vehicle in which you had travelled to that address.  The vehicle was then parked in the car park of a nearby block of flats.
It is clear that you saw the deceased Howson run from the unit, then seriously injured.  You played on part in attacking him and left the scene with others.  However, you were there as a member of a group of persons who had formed a common intention to prosecute an unlawful purpose; namely, to go to 28C Casserley Avenue and assault the occupants therein.  The jury's verdict indicates that it was satisfied beyond reasonable doubt that you were part of the plan and it was a probable consequence of the plan that Morey would be unlawfully assaulted and thereby occasioned bodily harm.
As to your criminal responsibility, it is by reason of the provisions of section 8 of the Criminal Code you were a party to the offences to which you have been convicted. You were in what the crown prosecutor referred to as the outer ring of those involved in the events of the night in question. You were not centrally involved in the discussions as to how the attack was to be carried out, but by making up the numbers as you did you were an important player in the events that occurred.
The only explanation put forward on your behalf of the events that occurred is that you had met your friends at the pool hall on the night in question and tagged along with them to Casserley Avenue.  I was said that Lam was a friend of yours and Nguyen and Truong were acquaintances and you went along with them because you needed a lift.  I am not prepared to accept that you went only because you needed a lift.  I accept that you knew there was going to be a fight and you joined the others to make up the numbers as requested by Nguyen."

When you were convicted and sentenced for the deportable offences you had convictions for traffic related matters and some minor drug offences.  Later, on 26 May 1999 you were convicted of possession and use of a prohibited drug (heroin) in circumstances where you were intercepted at a car park having shortly beforehand injected heroin into your body and had a small quantity in your car.  You were sentenced to 4 months imprisonment on each charge, the sentences to be served concurrently with the term of imprisonment you were already serving for the deportable offences.  You were released on parole as soon as you were eligible to do so, on 21 September 1999.  You were well behaved in prison.  A condition of your parole was that you undertake substance abuse counselling.  However, before any counselling took place you were taken into detention immediately after the deportation order was made.  Since then you have remained in detention awaiting the outcome of these proceedings.  Your parole expired on 24 May 2000.  While in detention you were charged (on one occasion) with cannabis use which had been brought to you by your friend, Debbie Tran.  You said it was to help you sleep because of the anxiety you were experiencing facing deportation.
The deportable offences fall within the "very serious" categories of offences listed in paragraph 11 of the General Direction – Criminal Deportation – No. 9 Policy statement.  In the context of community expectation crimes of violence are of particular concern in any consideration of the rights of the community to protection from violent behaviour.
Although you were found guilty of very serious offending, I also take into account that you were not a ringleader or central figure of the violence but in the outer ring of those involved in the events of that night. You were deemed to have committed the offences by s. 8 of the Criminal Code (WA) having a common intention in company with others to prosecute an unlawful purpose and in furtherance of that purpose, the commission of the offences with the necessary intention was a probable consequence.
It was your evidence that you will not re-offend; that you have had time to think about your convictions while in prison and are determined to make a fresh start and be a responsible member of the community.  I am acutely aware that assurances of reform are easily made where self-interest may influence a response however I accept that you have the support of your mother and sister.  Your involvement with drugs is a matter of concern, but you are not an addict.  There was no suggestion your involvement was other than for personal use.
While there is no legal obligation to administer a warning of liability to deportation, equally if a warning had been given prior to further offending it is expected that it be given significant weight in considering the risk of recidivism.  In the present matter there was no basis for a warning prior to the commission of the deportable offences and subsequent to conviction no warning was given prior to the deportation order being made.
A former employer in Carnarvon has offered you employment on his farm.  You intend to take up that offer of employment if permitted to stay in Australia.  I accept that employment is likely to assist with your rehabilitation and that you  have the potential to make a useful contribution to the community.
Having listened to your evidence I am satisfied that your expression of remorse should be accepted as a genuine indication of a determination not to re-offend.  I am prepared to accept that your prospects of rehabilitation appear to be good and with your employment opportunity that you are an acceptable risk to the community of not re-offending.
In your circumstances I do not regard the question of deterrence as a factor of significant weight.
While the legitimate expectation of the Australian community is that residents are protected from criminal behaviour, I do not think that the informed bystander, acquainted with your particular circumstances, would regard your criminal convictions with such abhorrence that you be removed from the community.
I am satisfied that deportation would caused severe hardship, especially to you, but also to your mother and sister.  Putting to one side the issue of whether you are in fact a Vietnamese or Cambodian national, about which there is considerable doubt, you have no known support or contacts overseas.  You have no realistic ties to either Vietnam or Cambodia.  In Australia, you have acquired some skills operating farm machinery and have the offer of employment using these skills.
Your family was directly affected by the notorious Pol Pot regime in Cambodia.  Your father and brother disappeared during that regime and are believed to have been killed.  Your mother had a hard life supporting the family after your father's disappearance.
I am satisfied you enjoy a close family bond with your mother and sister who would both suffer significant hardship if you were deported.  Your sister became an Australian citizen in 1993 and is settled here with he spouse and children.  Your mother lives with your sister but in accordance with your culture there is an expectation that you will take an active part in caring for your mother as she gets older.  You understand and accept your responsibilities in this regard.
Having considered all the evidence and weighing the relevant considerations required to be taken into account, I am of the opinion that the protection of the community is not in jeopardy by your continuing presence in Australia.  That despite the seriousness of your offending, the risk of your reoffending is low and you do not represent an unacceptable threat to the community.  In addition the prospect of you being able to make a useful contribution to the community and the undoubted hardship that you and your family members in Australia would suffer in the event of your deportation tip the balance in favour of you being permitted to remain in Australia. 
Accordingly I set aside the deportation order and remit the matter to the Minister with a direction that the deportation order be revoked.