Trinh and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 1306
•17 December 2002
CATCHWORDS – IMMIGRATION – bridging visa – character test – substantial criminal record – failure to pass character test – whether discretion should be exercised – decision set aside.
CATCHWORDS – PRACTICE AND PROCEDURE – admissibility of evidence – whether regard can be given to the oral evidence and documents tendered at the hearing – whether given to the Minister in accordance with ss. 500(6H) and (6J) of the Migration Act 1958 – materials faxed to the department not given to the Minister as required by the Migration Act 1958 – whether regard can be given to oral evidence arising from cross-examination.
Migration Act 1958 ss. 5, 20, 29, 31, 45, 52, 418, 496, 499, 500, 501 and 501G
Migration Regulations 1994 rr. 2.10, 2.13 and 2.14; Schedules 2 and 4
Acts Interpretation Act 1901 ss. 28A and 29
Evidence Act 1995 ss. 160, 161 and 162
Development Allowance Authority Act 1992
Defence Force Homes Loans Assistance Act 1991
Administrative Appeals Tribunal Act 1975 ss. 3 and 32
Administrative Appeals Tribunal Regulations 1976 rr. 18 and 18A
Commonwealth of Australia Constitution Act ss. 64 and 67
Public Service Act 1999
ICI Australia Operations Pty Ltd and Development Allowance Authority (1994) 33 ALD 153
Re Barron and Secretary, Department of Housing and Construction (1984) 1 AAR 563 National Mutual Life Association of Australasia Ltd v Windsor (1991) 100 ALR 585
Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 83 ALR 449
Re Looke and Defence Housing Authority (1994) 35 ALD 217
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 30 AAR 74
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 10910, 2 May, 1996)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
DECISION AND REASONS FOR DECISION [2002] AATA 1306
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/1059
GENERAL ADMINISTRATIVE DIVISION )
ReHUNG HAI TRINH
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 17 December, 2002
Place: Melbourne
Decision:The Tribunal:
1.sets aside the decision of the respondent dated 19 July, 2002; and
2.substitutes a decision that the applicant's visa should not be cancelled on character grounds pursuant to s. 501 of the Migration Act 1958.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 3 October, 2002, the applicant, Mr Hung Hai Trinh, applied for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") dated 19 July, 2002 and notified to Mr Trinh on 25 September, 2002. That decision was to cancel Mr Trinh's Bridging Visa Class A, subclass 010 pursuant to s. 501(2) of the Migration Act 1958 ("the Act").
At the hearing, Mr Trinh was represented by Mr Baker of counsel and the Minister by his solicitor, Ms Greaves. The documents prepared pursuant to s. 501G(2) of the Act and lodged with the application ("G documents") were admitted in evidence together with a bundle of documents prepared on behalf of Mr Trinh. Oral evidence was given by Mr Trinh, his wife, Ms Yen Thi Pham, his daughter, Thi Dung Trinh, and the Pastor of the Vietnamese Alliance Church in Footscray ("the Church"), Pastor Hoang Lang Tran.
THE ISSUES
The first issue is whether I may have regard to the oral evidence given in the case and to documents tendered at the hearing. That requires a consideration of whether statements setting out information to be given orally and copies of the documents were given to the Minister in accordance with ss. 500(6H) and (6J) of the Act. The second issue is whether Mr Trinh passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the third issue is whether the discretion in s. 501(2) should be exercised to refuse to grant him the visa.
BACKGROUND
A number of factual matters were not in dispute between the parties. In view of that and on the basis of the material in the G documents, I have made the findings of fact set out in the following paragraphs. I am aware that these findings do not represent the whole of the picture presented at the hearing but, for the reasons I set out below, I have not been able to have regard to the evidence presented on behalf of Mr Trinh at the hearing.
Mr Trinh was born on 10 November, 1950 in Vietnam. On 2 December, 1970, he married Yen Thi Pham, who was born in 1949 in Vietnam. They have three children. Their sons, Dung Ngoc Trinh and Ngoc Phung Trinh, were born on 13 April, 1972 and 3 February, 1978 and their daughter, Thi Dung Trinh, was born on 3 August, 1975.
Mr Trinh worked with his father as a fisherman and would often be out to sea for several days at a time. One day in 1978, he went out fishing as usual but did not return home. His wife later discovered from people in the village that his boat had not returned from the fishing trip. She then realised that he had left Vietnam and left her and his children.
Mr Trinh had intended to travel with friends to the Philippines but travelled instead to Taiwan. They voyage took ten days. During that voyage, he formed a relationship with Thi Thuy Linh Tran, who had taken her two daughters on the voyage. Thi Thuy Linh Tran's husband lived in the United States of America ("USA") and she intended to join him there. On their arrival in Taiwan, Mr Linh and Thi Thuy Linh Tran lived in a de facto relationship for approximately a year. They declared that they were husband and wife and that one of her daughters was Mr Trinh's child. Mr Trinh believed that this would enhance their prospects of being permitted to migrate to the USA. Despite that, neither Thi Thuy Linh Tran or Mr Trinh intended to continue their relationship once they arrived in the USA for she would re-join her husband. Even when they were in Taiwan, Thi Thuy Linh Tran's husband sent her money to support herself and her children. Their relationship was for convenience and companionship.
Once he was in Taiwan, Mr Trinh wrote to Yen Thi Pham to tell her of his arrival. He also told her that he planned to migrate to the USA but did not make any mention of her and the children joining him there. On the basis of Mr Trinh's statement, I find that he did not believe that he would ever see his wife and children again once he had left Vietnam.
On their arrival in the USA on 28 April, 1979, Mr Trinh wrote to Yen Thi Pham again in 1979 when he had arrived in the USA. He told her of his address. Yen Thi Pham wrote to him accusing him of forsaking her and the children and he apologised to her in a later letter. In that later letter, Mr Trinh promised to send her money to support her and the children. That money was not forthcoming but he did send clothes and cloth. Two or three times each year, Mr Trinh and his wife wrote to each other.
Mr Trinh found work in the USA but fell into bad company and drank heavily. On 21 May, 1982, he was convicted of aggravated robbery with a deadly weapon and sentenced to 15 years' imprisonment. Mr Trinh served almost five years of his sentence and was released on mandatory supervision on 4 August, 1987. He was discharged from mandatory supervision on 21 May, 1997 and so fifteen years to the day from his conviction (G documents, pages 21-22).
After he was released from prison in 1987, Mr Trinh found employment as a fisherman. He wrote to Yen Thi Pham and urged her to leave Vietnam and take the children to the Philippines. Mr Trinh also asked his parents to urge her to leave. She did not decide to do so until 1989. From this time, Mr Trinh sent money to his wife regularly.
Mr Trinh's application to sponsor his wife and children to the USA was refused as he had named Thi Thuy Linh Tran as his wife and not Yen Thi Pham. He had not mentioned his children. Yen Thi Pham was angry with her husband and wrote to tell him that she would cease communication with him. Despite that, Mr Trinh continued to send her money and to write to her.
In his personal life, Mr Trinh became a Christian and was baptised in January, 1992. He attended the Grace Baptist Church in Renton, Washington, regularly as well as bible study classes, picnics and excursions organised by the Church. Mr Trinh also drove new members to Church services and activities and participated in fund raising activities for it. On the basis of the letter from Reverend Peter Hai Nguyen dated 16 January, 2000, I found that Mr Trinh underwent a spiritual change and a change in the manner in which he presented himself in the three years following his conversion to Christianity. Mr Trinh has continued to practise his faith and to participate in the activities of the Vietnamese Alliance Church in Footscray. Yen Thi Pham has supported him in this by attending Church with him.
Yen Thi Pham and her children were accepted by Australia and arrived here on 16 March, 1994. Her anger at his having deserted her and the children was re-ignited and she did not write to him for about four months. Despite that, Mr Trinh found her address from other relatives, who lived in the USA and who remained in contact with her children. He then wrote to her and telephoned her every fortnight.
I accept the evidence of Yen Thi Pham that her faith in her relationship was restored by her husband's regular contact after her arrival in Australia. Mr Linh wanted her to visit him in the USA and their children encouraged her to go. She finally allowed herself to be persuaded to visit him in November, 1996. Her first purpose in going to the USA was to see for herself whether he was living with anyone else. She found that he was not and their reunion was very happy. Yen Thi Pham stayed with him for two months and only left as her mother in Vietnam became unwell and she left to visit her. She returned to stay with Mr Trinh in November, 1997 and remained until March, 1999.
Mr Trinh applied for a tourist visa on 29 November, 1999 for the period from 10 December, 1999 to 10 February, 2000. His stated reason for visiting Australia was for tourism as described in the application form and Yen Thi Pham was described as a friend. In answer to the question whether he had ever been convicted of a crime or of an offence in any country, the box marked "no" had been ticked and he was also described as a single person. I find that the application form was completed by a migration agent in Seattle, Mr San Ngyuen. Mr Ngyuen asked Mr Trinh to sign the application form, which he did.
Mr Trinh was issued with a Visitor Visa issued by the Australian Consulate General in Los Angeles. That visa authorised him to stay for three months after he arrived in Australia on 13 December, 1999. Mr Trinh declared his conviction on the Incoming Passenger Card that he presented on his arrival at the Melbourne Airport. On 10 March, 2000, he applied for permanent resident status on the basis that Yen Thi Pham was his wife. In his application, I find that Mr Trinh provided accurate information regarding his family and his prior conviction. As a consequence of his application, Mr Trinh was issued with a Bridging Visa A.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Bridging Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate's decision was made and of this review, criterion 4001 provided that:
"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."
Section 501(2) of the Act provides that:
"The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test."
The "character test" is set out in s. 501(6), which provides that:
"For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test."
In this case, the ground set out in s. 501(6)(a) is relevant. It is explained more fully in s. 501(7) when it is provided that a person has a "substantial criminal record" if, among others, a person has been sentenced to a term of imprisonment of 12 months or more (s. 501(7)(c)). As I have found that Mr Trinh was sentenced to a term of imprisonment for a period of 15 years, he has a substantial criminal record for the purposes of the Act and so does not pass the character test.
Procedures to be followed once the Minister or his delegate makes a decision
Section 501G sets out the procedures that the Minister must follow if he makes a decision under, among others, s. 501(2) as he has done in this case. He must give the person whose visa he has cancelled a written notice setting out the decision, specifying the provision under which the decision is made and setting out the reasons (other than non-disclosable information) for the decision (ss. 501G(1)(a) to (e)). Non-disclosable information means information that, in the Minister's opinion, would be contrary to the national interest for one of the reasons specified in s. 5(1). There is no such information in this case. The Minister is also required to advise the person of his or her right to have the decision reviewed by the Tribunal and, where the person is in the migration zone, to advise of the effect of ss. 500(6A) to (6L) of the Act. As Mr Trinh is in the migration zone, the notice that the Minister gives must also:
"… be accompanied by 2 copies of every document, or part of a document, that:
(d)is in the delegate's possession or under the delegate's control; and
(e)was relevant to the making of the decision; and
(f)does not contain non-disclosable information." (s. 501G(2))
There is no question that the Minister complied with the requirements of s. 501G in relation to the decision he made refusing Mr Trinh's visa.
Requirement that an applicant give the Minister certain material prior to the hearing
Sections 500(6H) of the Act provides that, where an application has been made for review of a decision under s. 501 and the applicant is in the migration zone, the Tribunal must not have regard to any information presented orally in support of his or her case unless the information was set out in a written statement "… given to the Minister at least 2 business days before the Tribunal holds the hearing … in relation to the decision under review". Section 500(6J) provides that the Tribunal must not have regard to a document unless a copy of it has been given to the Minister in the same time frame.
In this case, Mr Baker sought to tender at the hearing a letter from a Member of Parliament in support of Mr Trinh's case. As no attempt had been made to give a copy to the Minister in any sense and so not in accordance with s. 500(6J), I refused to admit it in evidence.
A separate question arose in relation to a bundle of documents sent to the Tribunal, and received by it, on 20 November, 2002. Those documents included letters and/or statements by Mr Trinh, Yen Pham, Dung Trinh and Dung Ngoc Trinh, all of whom Mr Baker sought to call as witnesses. They also included letters from Thanh Nhan Diep, the Managing Director of Fashions Controller Pty Ltd, Abbot Thich Phuoc Tan of the Quang Minh Temple and Mr Khoi Diep, President of the Vietnamese Buddhist Youth Association of Victoria and a document affirming the truth of a number of statements signed by the members of the Church. Copies of the documents were not given to the solicitors on the record for the Minister. Those solicitors had given the Tribunal notice that they were acting on 10 October, 2002. I understand that they had given notice to Mr Trinh's solicitors on, or about, the same date. A directions hearing was held on 24 October, 2002 at which representatives of both Mr Trinh's and the Minister's solicitors were present on the telephone. Mr Trinh's solicitors were reminded of the requirements of ss. 500 (6H) and (6J) of the Act and notice of these provisions had been given in the notice of the decision given to Mr Trinh on 25 September, 2002.
Rather than serving the Minister's solicitors, Mr Trinh's solicitors decided to serve the bundle of documents on the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") on Wednesday, 20 November, 2002. They discovered that DIMIA was closed that afternoon for training and they were unable to leave the bundle with any of its officers. Later in the afternoon, at about 4.00pm, Mr Trinh's solicitors sent a copy to DIMIA by facsimile. It was addressed to DIMIA and made no reference to the Minister at all. Indeed, it made no reference to the Tribunal or its hearing but referred instead to Mr Trinh's "Appeal before the Immigration Review Tribunal".
The question is whether the bundle of documents was "given to the Minister" on 20 November, 2002. If it was not, I am unable to have regard to documents included in the bundle unless they were previously given to the Minister. In so far as the bundle includes statements of witnesses, I may be unable to have regard to information presented orally by those witnesses in support of Mr Trinh's case unless they were given to the Minister. I say "may" because this is an aspect that I explore below. For the moment, I will assume that their evidence would be excluded if the statements are excluded by force of s. 500(6H).
The word "give" or "given" has been considered in a number of contexts by both the Federal Court and the Tribunal and is also the subject of s. 28A of the Acts Interpretation Act 1901 ("AI Act"). That section provides, in effect, that where an Act requires or permits a document to be given to a natural person then it may be given to that person by delivering it to him or her personally or by leaving it at or by sending it by pre-paid post to his or her residence or place of business last known to the person giving the document. Section 28A is complemented by s. 29 of the AI Act which, for the purposes of this case, provides that a document sent by pre-paid post is, unless the contrary is proved to have been the case, deemed to have been given at the time that the letter would be delivered in the ordinary course of post. Section 160 of the Evidence Act 1995 ("Evidence Act") takes the matter further and deems the time at which that letter is presumed to have been received at the address to which it was posted.
In 1994, the Tribunal considered the word "given" and this time did so in the context of the Development Allowance Authority Act 1992. It did so in ICI Australia Operations Pty Ltd and Development Allowance Authority (1994) 33 ALD 153 (Deputy President Forrest and Mr Elsum and Mr Woodward, Members). The issue for consideration was whether an application had been given to the Development Allowance Authority ("DAA") by 1 January, 1993. It had been posted on 24 December, 1992 but was not delivered to the DAA's locked bag postal address until 4 January, 1993. After an extensive review of the authorities, including Re Barron and Secretary, Department of Housing and Construction (1984) 1 AAR 563 (Senior Member Dwyer) and National Mutual Life Association of Australasia Ltd v Windsor (1991) 100 ALR 585 (Heerey J), the Tribunal concluded that the application was not given to the DAA until it had received it in its locked bag.
Later in 1994 and in the context of the Defence Force Homes Loans Assistance Act 1991, the Tribunal concluded that the principles considered by Northrop J in Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 83 ALR 449 at 461-462 (Sweeney, Northrop and Jenkinson JJ) in relation to the word "lodged" were equally applicable to the word "given" (Re Looke and Defence Housing Authority (1994) 35 ALD 217 (Senior Member Allen and GD Stanford and IR Way, Members). The essence of those principles were stated by Northrop J to be:
"… Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the registry. Thus, if an application is posted but not delivered to a registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the registry. Similarly, a document deposited on a counter at the office of a registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging. …" (page 461)
Applying these principles, the Tribunal said that "… there must be some evidence of positive receipt by the Secretary" (unreported version). As there was no evidence that the Secretary had not received the document and, indeed, positively denied that he had, the Tribunal found that a document had not been given to the Secretary.
The word "give" was considered by the Full Court of the Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 30 AAR 74 (Whitlam, Katz and Gyles JJ) in the context of s. 499(1), which authorises the Minister to give directions, in accordance with which decision-makers must exercise their powers and perform their functions. Whitlam and Gyles JJ concluded that the word had not been used in the sense of "serve" or "send" as in s. 28A of the AI Act. Instead, it had been used in the sense of "to issue" as in "to give a command". There was no requirement that a direction be actually delivered physically or electronically to those who are bound by it.
The High Court has also considered the meaning of the word "give" in the context of the Act. This time it was in the context of s. 418, which requires the Secretary to "give" the registrar of the Refugee Review Tribunal certain documents. In Muin v Refugee Review Tribunal (2002) 190 ALR 601 (Gaudron, Gummow, Kirby, Hayne and Callinan JJ, Gleeson CJ and McHugh J dissenting), the majority did not find it necessary to consider whether information delivered electronically to the registrar could be regarded as documents delivered to the registrar. Gleeson CJ did consider the issue and said:
"… What constitutes sufficient compliance with such a requirement depends upon the nature of the documents in question, the form in which they were available to the delegate, and the purpose for which they are to be made available to the tribunal. The purpose of the requirement is to enable the person reviewing the decision to know, and have access to, the material upon which the delegate relied, so as to be able to conduct the review. If the material is in the nature of general reference material, stored for convenience in a library, or on an electronic database, then provided the library, or the database, is accessible to the tribunal, I see no reason to interpret the requirement literally so as to require physical delivery of paper by the secretary to the registrar of the tribunal.
The expression "other document" in s 418(3) means a document other than the documents referred to in s 418(2), that is, other than the copies of the statement about the decision under review containing the information referred to in paras (a), (b) and (c) of subs (2). The nature of those other documents may vary. In the present case there was a file of papers relating specifically to Mr Muin, and those papers were physically transferred from the possession of the secretary to the possession of the registrar of the tribunal. The only other relevant documents were what I have described as the reference library. Having regard to the nature of that material, and the form in which it was available to the delegate when she made her decision, I would regard it as sufficient compliance with a requirement to give the material to the tribunal for the purpose of reviewing the delegate's decision if the material was identified, and made available to the tribunal in the same manner and form as it was available to the delegate. The statutory provision is concerned with access to information, not with possession of paper. The object is to make available to the tribunal member who reviews the delegate's decision the 'evidence' (in the broadest sense) that was before the delegate. In the case of the Part B documents, the Act did not require that they be gathered together in hard copy form and delivered to the tribunal. No legislative purpose would have been served by such a requirement, and the statutory language does not compel such a conclusion." (pages 608-609)
McHugh J reached a similar conclusion and, in doing so, expanded upon the meaning of "document" in the context of s. 418(3):
"… The object of s 418(2) and (3) is to ensure that the tribunal obtains all information in the department's possession that is relevant to the review of the decision. No violence is done to the object or language of s 418(3) by holding that 'document' includes information that is stored in a computer or a fax machine and which can be printed out by pressing one or more keys or buttons. No reason appears for thinking that parliament intended to distinguish between information stored on paper and information stored in the electronic impulses of a computer that can be printed on paper by pressing a key or keys on the computer's keyboard. Statutes are always speaking to the present. If we can, we should give the words of a statute - which after all are only the means of conveying ideas and information to the public - a meaning that covers contemporary processes and accords with the object of the enactment. Bropho v Western Australia (1990) 171 CLR 1 at 19-20; 93 ALR 207 at 215-216 adopting Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-4. As Justice Holmes once said Johnson v United States 163 F 30 (1st Cir, 1908) at 32, 'it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.'" (pages 626-627).
Putting aside s. 28A of the AI Act for the moment, it is apparent from these authorities that the context in which the word "give" is used influences the meaning to be attributed to it. Equally, it is apparent that where a document is to be given to a particular place or person, it must be given in the sense of received at that place or by that person. Where a direction or command is given to a group of people, it need not be received by the individual persons in that group. Section 28A of the AI Act and s. 160 of the Evidence Act fit into that framework for they provide for the manner in which a document may be given and circumstances in which it is deemed to have been received.
That brings me back to the context in which the word "given" is used in ss. 500(6H) and (6J) and the context in which those provisions appear. Taken in the context of s. 500 and particularly in the context of the expedited provisions for on-shore visa applicants, the object of ss. 500 (6H) and (6J) is to ensure that the Minister is aware of the material on which Mr Trinh relies. Those provisions could be said to complement s. 501G, which provides that the Minister must give a statement of reasons and certain supporting documents to the applicant and so make the applicant aware of the reasons for his decision and the material which supports that decision. If the object is to be achieved, it seems to me that the statements and documents referred to in ss. 500 (6H) and (6J) must be given to the Minister in the sense that they are received by him.
That leads to the question whether the statements and documents have been received by the Minister in this instance. On the basis of the transmission verification report, I am satisfied that, on 20 November, 2002, Mr Trinh's solicitors sent the statements and documents to the facsimile number shown on DIMIA's correspondence. I am satisfied that the transmission of the documents began at or about 16.49pm and was completed at 17.02pm. There is no evidence that DIMIA has received them and Ms Greaves stated that she had been instructed that it had not.
There is nothing in the Act, the AI Act or in the Evidence Act that makes any reference to giving documents by facsimile, whether by way of service or otherwise. As I have said, s. 28A of the AI Act sets out two ways in which a document may be given to a natural person but it does not limit the manner in which a document may be given to a natural person. Section 161 of the Evidence Act makes provision for certain documents transmitted by telex (i.e. by teleprinter) and presumes that they have been sent and received at certain times. Section 162 makes similar provision in relation to lettergrams and telegrams.
None of these provisions provides that post, telex, lettergram or telegram are the only means by which documents may be sent and received. They appear to be enabling provisions deeming the time of transmission and receipt of certain forms of transmission but they do not appear to limit the means by which a document may be given to a person. In the absence of any limiting provisions, it seems to me to follow that regard should be had to the modern methods of transmitting documents just as Gleeson CJ and McHugh J were prepared to do in Muin v Refugee Review Tribunal. In view of that and in the absence of any evidence of any difficulties with DIMIA's facsimile number on the day of transmission, I am satisfied that, on the balance of probabilities the statements and documents were received by DIMIA at or about the time they were sent by facsimile by Mr Trinh's solicitors. That is to say, they were given to DIMIA at that time.
The next question is whether giving the statements and documents to DIMIA is sufficient. Section 32 of the Administrative Appeals Tribunal Act 1975 provides that "… At the hearing of a proceeding before the Tribunal, a party to the proceeding may appear in person or may be represented by some other person." Section 3(4) of the AAT Act provides that a requirement in that legislation to furnish a person with a document or statement, or to serve or give to a person a notice or other notification is satisfied if the document, statement, notice or notification is posted or delivered to that person's address for service. The Administrative Appeals Tribunal Regulations 1976 ("AAT Regulations") provide for the manner in which a person may notify the Tribunal of his or her address for service (r.18) and the manner in which a document may be served at an address for service (r. 18A). Neither the AAT Act nor the AAT Regulations can affect the interpretation of the provisions of the Act.
The Minister and the Department are two different entities. Under s. 64 of the Commonwealth of Australia Constitution Act, the Governor-General may appoint officers (i.e. Ministers of State) to administer such Departments of State of the Commonwealth as the Governor-General in Council may establish. Section 67 provides for the appointment and removal of all other officers of the Executive Government and in so doing provides that Parliament may make provision for those matters. This Parliament has done in the Public Service Act 1999. There is a clear distinction between a Minister of State and the Departments of State that he or she administers. That distinction is reflected in both the Act and in the AI Act. While the Minister administers a Department of State of the Commonwealth known as DIMIA, there is a clear distinction between the two. While the Minister may delegate his powers under the Act (Act, s. 496), there is nothing to suggest that a reference to the Minister incorporates a reference to his Department. There is nothing to suggest that the Department's premises are the "place of business" of the Minister so that advantage may be taken of s. 28A of the AI Act.
Section 52(1) of the Act provides that a visa applicant must communicate with the Minister in the prescribed way. If a visa applicant or an interested person chooses to communicate with the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister actually receives it (Act, s. 52(3)). Division 2.3 of Part 2 of the Regulations is concerned with communication between applicant and the Minister. Regulation 2.13 provides that an applicant or interested person must communicate with the Minister about a visa application in a way prescribed by that regulation. I would emphasise that the regulation is concerned with communication "about a visa application". It seems to me that the communication with which ss. 500 (6H) and (6J) are concerned is about an application made to the Tribunal and not about a visa application. Certainly the application to the Tribunal could not have been made unless there had first been a visa application but there have been several steps in between. One of those steps is the decision of the Minister or his delegate to cancel Mr Trinh's Bridging Visa Class A and it is in relation to that which the application has been made to the Tribunal. It is not made in relation to a decision that led to his being given that visa or to his application for a permanent residence visa. Consequently, I do not consider that the provisions of r. 2.13 of the Regulations are relevant to a consideration of whether Mr Trinh's solicitors gave statements or documents to the Minister under ss. 500 (6H) and (6J) of the Act when it sent the bundle of documents by facsimile to the Department.
I note that r. 2.13(4)(d) and r. 2.14 both speak of "… the office at which the application was given to the Minister". In the former regulation, it is speaking of an office outside Australia and in the latter it may be speaking of any office inside or outside Australia. Those regulations must be read in the context of s. 29 of the Act which provides that, subject to the Act, the Minister may grant a non-citizen a visa to travel to and enter Australia and/or remain in Australia. They must also be read in the context of s. 45 which provides that, subject to the Act and the Regulations, a non-citizen may apply for a visa of a particular class. Regulation 2.10 provides for the places where an application for a visa may be made. Some may be given to DIMIA, or to certain of its offices, others to a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia and yet others to a visa application agency. It is apparent that the applications are made to the Minister for it is the Minister, or his delegate, who makes the decision. That provision is made for a visa application to the Minister to be given to DIMIA in certain instances does not mean that it can be said that any document given to DIMIA has been given to the Minister. In the absence of an express provision, I do not think that it can be said to be so.
It seems to me that, if the statements and documents had been sent to the Minister's solicitors, he could not be heard to have said that he had not received them. They would have been given to those whom he has authorised to act on his behalf. In the context of ss. 500 (6H) and (6J) and of s. 500 generally requiring that information be given to the Minister regarding the application to the Tribunal, it seems to me that the information would have been received by those acting on his behalf and so received by the Minister. For the reasons that I have given, receipt by his Department does not equate with receipt by the Minister. Assessing that outcome by reference to the practicalities of the situation, it makes sense that it does not do so given the number of offices of the Department and the number of applications with which it deals. The qualification to this would occur were the Minister to be represented by "in-house" advocates who may or may not be lawyers. Transmission of the statements and documents to a facsimile number identified as having a close connection with the advocate concerned or with an advocacy unit within DIMIA would presumably have the same effect of giving it to private solicitors engaged on behalf of the Minister.
For the reasons I have given, I do not consider that Mr Trinh's solicitors gave the Minister copies of the statements and documents as required by ss. 500 (6H) and (6J). This is contrary to the view I expressed at the hearing.
As some of the information in the statements sent to the Department was similar to that in the G documents, I have also considered whether it can be said to have already been set out in a statement or statements given to the Minister. A "statement" is a "… declaration in … writing setting forth facts, particulars, etc. …" (The Macquarie Dictionary, 2nd edition, 1991). The G documents include such written declarations from Mr Trinh and Yen Thi Pham (G documents, pages 28-33). They have been provided in support of Mr Trinh's application for a spouse visa. They contain the knowledge and assertions of Mr Trinh and Yen Thi Pham regarding matters having an impact on whether or not Mr Trinh would be granted a visa. They contain information in the sense in which that word is used in s. 500(6H) (The Macquarie Dictionary, 2nd edition, 1991 and see also Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 (Whitlam, Tamberlin and Sackville JJ).
Assuming the statements in the G documents have been given to the Minister in accordance with the Regulations made in accordance with s. 52 of the Act, they can be said to have been given to the Minister even though they have been given to the Department. That is because they have been communicated to the Minister in the manner permitted by the Regulations. If they have been so communicated, they have been given to the Minister. They have been given in relation to an application for a visa but there is nothing in s. 500(6H) to suggest that the written statement must have been given to the Minister in relation to the application for review in the Tribunal. It seems to me that it is sufficient that a written statement was given to the Minister in relation to an application for a visa.
There is no evidence as to whether the statements made by Mr Trinh and Yen Thi Pham were given to the Minister in accordance with the Regulations but I have presumed that they were. Despite that, I have decided to disregard the oral evidence led in chief lest that conclusion be incorrect. Had I taken it into account, I would have reached the same conclusion.
Can I have regard to evidence given in cross-examination?
The purpose of cross-examination has been variously described but, expressed in their simplest terms, they are:
"to elicit evidence of facts in issue or relevant to the issue tending to support the cross-examiner's case, and
to test the credibility of the witness by casting doubt on his veracity, accuracy or capability." (An Introduction to the Law of Evidence, WAN Wells QC, AB Caudell, Director and Government Printer, South Australia, 1991)
It follows that oral evidence elicited from Mr Trinh and the other witnesses in cross-examination cannot be said to be information presented orally in support of his case. Applying the reasoning of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 (Gray, RD Nicholson and Stone JJ), there can be no restriction on the Minister with regard to the oral information on which he relies. In Goldie, the Full Court said of the documents on which the Minister might rely at the hearing:
"29 Parliament has chosen to place an express restriction on the entitlement of an applicant for review to rely on documents at a hearing in the Tribunal. That restriction is found in s 500(6J). It would have been a simple matter to include an express restriction on the Minister's entitlement to rely on documents. No such express restriction is to be found. Nor is there the implication of such a restriction arising from the limited categories of documents with which the section deals."
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act.
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble:
"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations."
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community."
Assessing good character - the Direction and the authorities
The Direction is then divided into two: the application of the character test and the exercise of the discretion. As the effect of s. 501(6)(a) with s. 501(7) is that Mr Trinh has not passed the character test, the first part of the Minister's Direction is not relevant. For all that, it is still relevant to look at the authorities regarding what is meant by "good character" in the context of the Act. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon said that :
"'Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)
After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
"These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 10910, 2 May, 1996). In Prasad, Deputy President McDonald added:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (paragraph 7)
What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which good character does refer in the following passage:
"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321. Speaking generally of s. 501, the Full Court said that it:
"… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 501 is not concerned with whether an applicant meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is 'not of good character' within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal's decision on this ground, so (sic) it is unnecessary to pursue this question." (paragraphs 8 and 24, pages 324 and 327)
Exercising the discretion – the Direction
58. Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:
"… note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." (paragraph 2.2)
59. The three primary considerations are:
"(a)the protection of the Australian community and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children." (paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Trinh's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future (paragraph 2.5).
Of particular significance in relation to the seriousness and nature of Mr Trinh's conduct, I must have regard to:
"…
(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
…
(e)armed robbery (including robbery involving the use of imitation weapons), home invasion
…" (paragraph 2.6)
It is the government's view that the sentence imposed for the crime is an indication of the seriousness of the offender's conduct against the community. Decision-makers are directed to take account of the person's criminal record including the number and nature of offences, the time between offences and the time that has elapsed since the most recent offence as well as the "repugnance of the crime" (paragraph 2.7).
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Trinh as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.
Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …" (paragraph 2.12)
As Mr Trinh's children are now adults and as no reference was made to his relationship with any of his grandchildren, those passages of the Direction concerning the best interests of children are not relevant. Equally, there are no international obligations that are relevant.
Should Mr Trinh's visa have been cancelled?
Quite apart from Mr Trinh's having a substantial criminal record by virtue of the description it is accorded in s. 501(6)(a) of the Act and quite apart from armed robbery, whether with real or imitation weapons, being regarded as very serious, the offence of which Mr Trinh was convicted was very serious indeed. On the basis of the evidence he gave in cross-examination, I find that Mr Trinh robbed a jewellery store while armed with an imitation or fake gun. At the time, he was drunk and made no effort to cover his face or to wear gloves. He committed the offence in the company of two other men but they were not detained. Mr Trinh escaped with jewellery and gold and sold them in 1981. When he had a car accident in 1981, his fingerprints were matched with those taken from the jewellery store and he was returned to Texas where he had committed the offence. He pleaded guilty to the charge. Even if his being drunk were to be considered as a mitigating circumstance, and I doubt that it is, there are no other mitigating circumstances put forward in relation to the offence. That is reflected in the substantial sentence that he received.
As serious as his offence was, I am satisfied that it is most unlikely that Mr Trinh will commit another offence. It is clear from his release on parole after only five years of a fifteen year sentence that he must have avoided misbehaving in prison. It is equally clear from his parole period being completed on the fifteenth anniversary of the start of his sentence that he continued to avoid misbehaving during the ten years following his release. There is no record of his having been charged with, or having been convicted of, any offence since the expiration of the 15 years on 21 May, 1997. That means that there is no evidence that Mr Trinh has committed any offence since his first and only offence in or about 1979. In view of that and on the basis of his evidence that he has not done so, I am satisfied that Mr Trinh has not committed any offence for over 20 years.
It is not only the length of time since his offence that persuades me that he is unlikely to commit another offence. It is the changes that he has brought about in his life since that time. He has found Christianity and has found solace and direction in his religion. I accept that he has changed both visibly and spiritually and in doing so accept the evidence of the Reverend Peter Hai Nguyen. Whether it is his religion that has changed him or whether the change has come from within and led him on a new path incorporating his religion is of no consequence.
The change in him is also apparent in his change from a person whom I accept left his wife and children in Vietnam in order to seek a new life for himself to a person who has expended effort over a long period of time in recovering his family. It is not something that he has embarked upon recently. On the information available to me, he resumed some level of contact shortly after his arrival in the USA. There was a break while he was in prison but he resumed contact on his release in 1987. Since then, he has sought to be reunited with his family and he has maintained contact and sent money. His efforts to have them join him in the USA were thwarted by his earlier misrepresentation to the migration authorities in the USA but that misrepresentation does not reflect adversely on the genuineness of his subsequent efforts. Mr Trinh, I find, persisted with his contact even when Yen Thi Pham sought to avoid it in her anger at his earlier actions in leaving her to cope alone and to represent another as his wife.
I am satisfied that there are errors in the application for a visitor's visa that Mr Trinh signed. That was not a document that he completed although he took responsibility for it when he signed it. For all that, I do not consider that the misstatements should reflect adversely upon him. I am satisfied that his English is poor and that accords with the view of Mr McLauchlan in DIMIA's Melbourne Character Section (G documents, page 52) and with my own observations. The application was completed by a migration agent and as soon as Mr Trinh understood what was being asked of his, such as when completing his Incoming Passenger Card, he revealed his conviction. At no time has he attempted to hide his conviction in his discussions with the Department. He has also openly acknowledged his married status and his family.
I am also satisfied that Mr Trinh left the USA with the intention of not returning to it. He hoped that he would be able to settle in Australia. At first sight, that may seem at odds with his having applied only for a visitor's visa. On further enquiry, however, I do not think that it is. I am satisfied on the evidence that Mr Trinh gave in cross-examination or on questioning by me that he had very few possessions in the USA. His major possession was a 1989 Toyota car that was worth very little and he gave it to his nephew. The television in the room that he lived in at his brother's house belonged to his brother. He gave his bed to his brother but brought his clothes and his DVD player to Australia.
I am satisfied that Mr Trinh has not wanted to jeopardise his chances of being reunited with his wife and children. He would not want to do so in the future when he has waited so long and worked so patiently to be reunited with them. To these should be added a further factor and that is the obvious shame that Mr Trinh exhibited when talking about the offence. Even with a language barrier, shame was evident in his demeanour. It follows, I am satisfied, that the risk of his re-offending is very low indeed.
Given the nature and circumstances of the crime, I do not consider that the cancellation of Mr Trinh's visa would have any impact in deterring others from committing similar offences. It was an offence committed by a young man who was drunk and in a new and foreign country in every sense of the word. It is unlikely that any person in a similar circumstance is likely to pay any heed to the fact that Mr Trinh's visa was cancelled because he had committed an offence of armed robbery 20 years ago in the USA. It is unlikely to deter a sober person who deliberately plans to commit a similar offence because he or she would be likely to have other outcomes in mind and pay little heed to the effect on his or her visa. Finally, there is no evidence to suggest that any cancellation of Mr Trinh's visa on such grounds would be become widely known in the community.
There is no doubt that the Australian community expects its citizens to obey the law and, in view of the findings I have already made, I am satisfied that Mr Trinh will be a person who will do that in the future. His conviction is for an offence that is not indicative of the sort of behaviour that is acceptable to the Australian community but the Australian community is not unforgiving. It knows that people err and expects that people will be given a "fair go" when they do err and show that they are contrite and want to do the "right thing" by the Australian community. I am satisfied that Mr Trinh is such a person. He was not always so but the person who committed that offence has been left behind long ago. The person who would leave his family and who would commit such an offence has been replaced by a person who cares for his family and has worked patiently and persistently to recover their trust. His family has extended their trust to him and I am satisfied that the Australian community would respond in the same way in the circumstances.
If Mr Trinh were not permitted to remain in Australia, I am not satisfied that he would be able to return to the USA. As he has been absent for over 12 months, he has lost his right to re-enter as a resident and his application would be re-assessed on its merits. It is unlikely that he would be able to live with his brother again as his brother's family has expanded with the marriage of his children and it has now occupied his former room. If Mr Trinh had to return to Vietnam, it is unclear whether he would obtain employment or not. His daughter gave evidence that he would not but it is unclear how extensive her efforts to identify employment opportunities were.
If Mr Trinh is not permitted to stay in Australia, I am satisfied that Yen Thi Pham would remain in Australia where two of her children live. Her third is currently overseas studying to be a Buddhist priest. She would be deeply distressed by having to do so. On the basis of her statement, I find that she has forgiven her husband and wishes to live with him as husband and wife (G documents, page 33). As she said in cross-examination, she has suffered a lot by herself.
Taking all of these matters into account, I do not consider that cancellation of Mr Trinh's visa protects the safety and welfare of the Australian community or that the Australian community would expect that he be refused permission to remain in Australia where he may provide comfort to his wife who has suffered much without him. Cancellation would, however, bring great distress to his wife. She does not know how she would cope. On the basis of the evidence given to me at the hearing by Thi Dung Trinh, I am satisfied that his leaving Australia would also bring distress to his children. That would arise in part because of the loss of their relationship with him. To a greater extent, though, it would arise because of their concern about the effect that their father's leaving would have on their mother. I am satisfied that they do not know how she would cope after waiting for him for ten years and then losing him.
Perhaps it could be said that Yen Thi Pham would cope as she has done so much in the past. Perhaps it could be said that her children would do so. Even if they could cope, Yen Thi Pham would suffer great emotional distress as would her children and as would Mr Trinh. Their distress and subsequent dislocation of the family or separation of the family by Mr Trinh is disproportionately great when weighed against there being no need to cancel Mr Trinh's visa to protect the welfare and safety of the Australian community or to meet the Australian community's expectations.
For the reasons I have given, I
1.set aside the decision of the respondent dated 19 July, 2002; and
2.substitute a decision that the applicant's visa should not be cancelled on character grounds pursuant to s. 501 of the Migration Act 1958.
I certify that the seventy-nine preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)Signed: ...............................................................
P. Paczkowski AssociateDate/s of Hearing 25 and 26 November, 2002
Date of Decision 17 December, 2002
Counsel for the Applicant Mr D. Baker
Solicitor for the Applicant Michael J. Gleeson & Associates Pty
Solicitor the Respondent Ms J. Greaves
Blake Dawson Waldron
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