Trinh Quoc Toan Tran and Minister for Immigration and Citizenship
[2013] AATA 235
[2013] AATA 235
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0422
Re
Trinh Quoc Toan Tran
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr D Letcher, QC, Senior Member
Date 17 April 2013 Place Sydney The decision under review is affirmed
.......[sgd].................................................................
Mr D Letcher, QC, Senior Member
CATCHWORDS
MIGRATION - Cancellation of visa - does not pass character test - substantial criminal record - drug offence - imprisonment of 12 months or more - application of Direction 55 - primary considerations - other considerations - discretion not to cancel not exercised - decision affirmed
LEGISLATION
Migration Act 1958
CASES
-
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501 -
REASONS FOR DECISION
Mr D Letcher, QC, Senior Member
17 April 2013
THE APPLICATION
Trinh Quoc Toan Tran ('the Applicant') applies to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') of 16 January 2013 cancelling his Class BO Subclass 115 Remaining Relative Other Family (Migrant) visa. The delegate's decision under s 501(2) of the Migration Act 1958 ('the Act') was made on the basis that he reasonably suspected that the Applicant did not pass the 'character test' in s 501(6) of the Act and that the Applicant failed to satisfy him that he did pass the test.
THE DECISION UNDER REVIEW
The delegate found that the Applicant did not pass the test because he had a 'substantial criminal record' under s 501(7) of the Act. For the purposes of the Act, a person has such a record if they have been sentenced to a term of imprisonment of 12 months or more. On 24 July 2009 the Applicant was convicted of Import Marketable Quantity of Border Controlled Drug (Heroin) and sentenced in the District Court of New South Wales to imprisonment for seven years and six months.
Having found that the Applicant did not pass the character test by virtue of a substantial criminal record, a discretion was enlivened and the Delegate then applied the criteria set out in ministerial Direction no. 55 – Visa refusal and cancellation under s501 of the Act (the Direction) to determine whether he should use his discretion to cancel the visa. In this case the basic question was whether the Applicant posed an unacceptable risk of future harm to the Australian community (Paragraph 7 (1)(b) of the Direction). The principles of Direction are used to determine whether the risk of future harm from a non-citizen is unacceptable and, thus, how the discretion of the Tribunal standing in the shoes of the Minister should be exercised.
PRINCIPLES OF DIRECTION NO. 55.
The Principles are set out in Clause 6.3 and may be summarised as:
1Coming to, or remaining in, Australia is a privilege given with an expectation the person will be law-abiding and not threaten harm during their stay.
2A non-citizen who commits a serious crime generally forfeits that privilege.
3Some criminal behaviour is so serious that any risk of repetition is unacceptable.
4Australia has a low tolerance of criminal conduct by people who have been here for only a short time.
5Limited stay visa holders who commit crime should not expect to be allowed to stay.
6The length of time of a positive contribution to Australia and the consequences to minors or immediate family in Australia of visa cancellation are considerations.
PRIMARY CONSIDERATIONS
In deciding whether to cancel a visa, the primary considerations in Clause 9 of the Direction can be summarised as:
1Protection of the Australian community from criminal or other serious conduct
2Strength, duration and nature of the person's ties to Australia.
3The best interests of minor children in Australia
4Any 'non-refoulement' obligations to the person
Clauses 9.1 and 9.1.1 outline the factors which must be considered concerning the nature and extent of risk to the community from a person's misconduct given the commitment of government to protect the community from harm. The factors will be considered individually later for their significance in the context of this particular case.
OTHER CONSIDERATIONS
There are other considerations which must be taken in to account, where relevant (Clause 10). These considerations include effects of the visa cancellation on immediate family, Australian business interests, impediments to the person by reason of age, health, language etc if removed to a home country.
FACTUAL BACKGROUND
The Applicant was born in Vietnam on 20 July 1972. He had a disturbed early life due to war and family dislocation. His family had four children and in about 1982 his mother left his father and (reluctantly) the Applicant and his younger sister to take herself and two children on a boat to a new life. The Applicant grew up with his elderly grandparents. He remained in Vietnam until he was aged 37 years, working as a butcher and salesman. Meanwhile his mother had reached a refugee camp in Malaysia and formed a relationship with a man who fathered one child there and another two when they were admitted to Australia but that relationship ended. His mother went to Vietnam in 1995 and reconciled with her husband who came to Australia but they later divorced. By 2005, the Applicant’s mother, father, three siblings, three half-siblings plus a number of aunts, uncles and cousins were all in Australia. The Applicant and younger sister were not eligible for emigration. The Applicant’s sister married, became eligible and emigrated first to Australia and is now residing in the USA. This left the Applicant as the sole remaining relative of his immediate family in Vietnam and hence his eligibility for his particular class of visa. He entered Australia on 9 December 2005 on a Class BO Sub-class 115 Remaining Relative [Permanent] visa entitling him to permanent residence.
The Applicant obtained employment in January 2006 and remained in that job for almost three years. He bought a car, rented a flat and in May 2008 began living with a younger Vietnamese woman who it is said became pregnant. The indefinite status of the relationship and of any child produced is considered below.
During the three years after arrival in December 2005, the Applicant made six short trips to Vietnam, which he said were for holidays and to see family and friends. He remained in contact with a variety of cousins and other extended family remaining in Vietnam.
On 12 September 2008 the Applicant flew to Vietnam and returned to Sydney airport 14 days later. His employer had approved this and earlier absences from work. On arrival the Applicant was found to be wearing shoes containing almost 800 grams of powder which was over 67 per cent pure heroin, with a street value between $820,350 and $1,367,250. He was charged with importing a ‘marketable quantity’ of drugs and pleaded guilty at the first opportunity. He had no record of any prior offences here or in Vietnam. He gave a number of accounts of how much he knew about the contents of the shoes and what motivated him to commit the offence. He gave evidence before the sentencing judge and in the Tribunal. The judge said in his remarks on sentence:
“I do not accept that there was any duress at all… I find beyond reasonable doubt that the offender was a willing and knowing participant for financial reward…I do not accept that the offender has been frank about his knowledge of the venture or other participants if there were any… I do not believe that the gambling debt motivated the importation of this drug…He played an integral and pivotal role in bringing drugs into Australia…he was directly instrumental in a planned importation which necessarily must have involved significant organisation and deliberation…There is little evidence of remorse. The plea itself is in the context of a strong Crown case and I think what the offender has done is sought to minimise his culpability in relation to the offence and I do not find adequate evidence of remorse… I do not think the degree of cooperation is significant and certainly he has provided no useful information as to others that may have been involved and the information appears to be particularly vague. One would think it is calculated to be a bit vague…” [pages 5 and following of those remarks]
The judge allowed a discount for the early guilty plea and did “accept because of his lack of antecedents that he has reasonable prospects of rehabilitation”. He sentenced the Applicant to seven and a half years from entry into custody, with a non-parole period of four years and four months.
In his evidence to the Tribunal, the Applicant attributed his troubles only to a gambling addiction first appearing after entry to Australia. He had rung “the gambling service” only once for help but “they asked me to attend the office and I was losing money and addicted so I kept on”. On his last trip to Vietnam, he and friends were at a casino across the border in Cambodia and he was losing when a man “I think he was working in the exchange office” offered to lend him $US5,000 which he then lost. The arrangement was that the man would take his passport but return it when the Applicant borrowed from friends and repaid the loan. When the Applicant could not pay, the man asked if he “could take something to Australia…I had no choice, I could not say no, they had my passport…they said [it would] pay off the debt…they did not promise further money…they just tell me it was something illegal and when I arrived in Australia I thought in my head it was heroin….”
The Applicant denied that he was not frank with the judge, said he had provided as much detail as he could , that he had felt remorse “straight away after I was under arrest” and that he was “now a rehabilitated man no longer overshadowed by gambling”. It was common ground that he had worked conscientiously in jail, had undertaken several rehabilitation programmes, despite very poor English, and he had not committed any further offences.
The Applicant said his girlfriend had visited him in jail but after a few months did not come again. His father had gone to their flat to find her but she had gone. His mother had found ‘some way to find out about the child’ and he had asked his mother to find the girlfriend (although his mother’s evidence did not mention the child) but without a result. He asserted that he had realised gambling was ‘the worst thing in my life’, that it had a high cost, that he agreed to have a ‘no gambling’ clause in his parole conditions, and that his trips to Vietnam were for innocent reasons.
Curiously, for a man carrying almost a pound of heroin in each shoe, the Applicant said that he knew Customs would be watchful of him, and on prior trips “they checked me well and used an x-ray machine because I had so many trips”. He had said in 2011 that ‘the people behind this drug import’ were threatening his family in Vietnam but gave no evidence of this nor of any threat in Australia. Why, if he were telling the truth, he did not simply pour the powder down the aircraft toilet and walk off in the empty shoes was never explained.
The Applicant’s mother, father, two priests of the Vietnamese Catholic community, a Catholic Sister and four siblings gave written statements of character and knowledge of his gambling problem. A building contractor offered him employment as a labourer. Those who were required for cross-examination attended and were not affected as to credibility. Those who had attempted to speak to the Applicant about his gambling had been brushed aside but now believed he showed eagerness to change.
The Applicant was assessed by psychologists Mark Howard, pre-sentence, David Green in March this year and Corrective Services on 17 June 2009. All giving opinions agree that he is in the low risk category for re-offending, although the Corrective Services “Level of Service Inventory- Revised [LSI-R]” notes that ‘of offenders assessed in 2005, 19% of those assessed as low risk returned to gaol within two years’. Mr Green was :
“inclined to the view Mr Tran is probably unlikely to gamble on his release…he has few risk factors of re-offending ‘…’ and the major risk factor is a return to gambling.
Mr Green gave the Applicant a DSM-4-TR diagnosis of “Impulse Control Disorder – Pathological Gambling “but that was based on the applicant’s present statements of his attitudes to gambling before he was arrested, not his current opinions. It is to be noted that the sentencing judge expressly rejected gambling as the prime motivation for the offence [page 8].
DIRECTION NO. 55
The application of the Principles set out in Clause 6.3 to the facts of this matter lead to the following:
(1)If residence in Australia is given with an expectation the person will be law-abiding and not threatening harm then although the applicant has not made actual threats, his actions in importing a large quantity of heroin was seriously harmful to those misusing the drug and a grave breach of the law.
(2)The applicant is a non-citizen committing a serious crime – generally leading to denial of the privilege.
(3)Criminal behaviour so serious that any risk of repetition is unacceptable – there must always be some risk of repetition and in this case it is “low” but what low actually means is open to debate.
(4)A low tolerance of crime committed by persons here for only a short time – the applicant was here for less than three years before his crime.
(5)Limited stay visa holders committing crime – in fact the Applicant’s visa was not for limited stay.
(6)Length of a positive contribution and consequence to minors or family of cancellation – in this case the contribution and the effects can be assessed fairly as minimal.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Direction, at 9.1, states that regard should be given to the principle that the Government is committed to protecting the Australian community from harm. In order to make that assessment, regard should also be given to the factors identified in the Direction at 9.1.1 and 9.1.2 with respect to the nature and seriousness of the person’s conduct to date and the risk to the community should the person commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
·Violent or sexual crimes are regarded very seriously. While the Applicant’s offence is serious, it is a drug offence and is neither violent nor sexual.
·Crimes against vulnerable members of the community are serious. While drug offences do not specifically affect children or the elderly, they may have an effect on those suffering from addiction or drug-dependant people.
·The Applicant was given a seven and a half year sentence, an indication of the seriousness of the offence. The offence attracts a maximum sentence of 25 years. The judge described it as a “mid-range offence” in which the Applicant played the central or only role. The judge did not accept the applicant’s story of duress nor the main motivation being gambling. He did not believe that the applicant had given truthful information nor that he was remorseful beyond being sorry he was caught. The applicant’s lack of sincerity and credibility meant he could not be given leniency for those factors.
·With respect to the frequency of offending and any trend of increasing seriousness, at the time he committed the crime, the Applicant was aged 36 with no prior offences. This is an unusual picture. He was free in Australia only between December 2005 and September 2008 since when he has been in custody and unable to commit any offence.
·The Applicant has not reoffended since the offence was committed. As indicated previously, this was his only offence. As a result, the cumulative effect of repeated offending is not applicable in this instance.
Risk to the community should the person commit further offences or engage in other serious conduct
The Direction, at 9.1.12, identifies that in considering whether a person poses an unacceptable risk of harm, regard should be given to the principle that the community’s tolerance for any risk of harm becomes lower in proportion to the increased seriousness of the harm.
An assessment as to risk is made having regard to, cumulatively, the nature of the harm if the person were to re-offend and the likelihood of further offending, taking into account information on the risk of re-offending and evidence of the extent of rehabilitation achieved.
With respect to the Applicant, his offence was a very serious one committed within three years of arrival and for financial gain. He may be in the ‘low risk category’ for reoffending but the risk is not negligible and further offences of this character are liable to cause great harm to the community. The extent of his reformation and ability to withstand the temptations of such crime are untested and must be strongly doubted.
On this basis, I find that the evidence with respect to the protection of the Australian community weighs against the Applicant and, therefore, in favour of cancellation of the visa.
Strength, Duration and Nature of Ties to Australia
The Direction, at 9.2, reflects the principles at 6.3 and identifies what a decision-maker must have regard to.
The Applicant’s entire immediate family are in Australia (or USA), numbers of extended family are here, he had an unbroken work history (and it is not clear whether he lost his job before his last trip – see judges reasons at page 3 - or merely took leave) a flat and a girlfriend. As against that, he had very poor English, mixed within the Vietnamese community, had strong ties still in Vietnam with six trips in under three years and had strained relations with family members concerned about his behaviour. He accompanied his mother to church and helped her because of her impaired vision. The family is his strong tie. His role as the last remaining member not in Australia is the very reason why he was granted a visa. Unfortunately, within less than three years he committed a very serious crime.
The judge found the Applicant’s six short trips “suspicious if not highly suspicious” (page 6) especially because he had pawned jewellery and borrowed from his girlfriend to pay for the air ticket (page 5) and may have been without a job. The suspicion could refer only to a suggestion of other drug offences. That is a very serious allegation and it could be treated properly only in a very serious fashion. I make it quite clear that I do not draw any inference adverse to the applicant on the basis of those trips. It would be improper to do so without applying a Briginshaw v Briginshaw (1938) 60 CLR 336 test applying the civil standard, but as a matter of prudence requiring cogent proofs before being satisfied. Those cogent proofs do not exist. It is a commonplace that VFR (Visiting Friends and Relatives) is a prime reason for the frequent travel of recent migrants to Australia.
Although the Applicant has many family ties in Australia, some 33 of 36 years were spent in Vietnam and his entry into the Australian community was very limited. His strong ties remain with Vietnam. For these reason, this consideration weighs only moderately in favour of the visa not being cancelled.
Best Interests of Minor Children
The Direction, at 9.3, identifies what a decision-maker must have regard to with respect to the best interest of the child.
Whether the Applicant has fathered a child in Australia is not clear. He said his mother had “found some way to find out about the child” but she did not give that evidence, he produced a letter said to be from his pregnant girlfriend in October 2008, but she has been silent and absent since December 2008. As any such child would be about four years old by now and the supposed mother has cut all ties with the Applicant and his family, the probability of a close relationship between child and father seems remote. Sex, name, age, health – all are unknown and likely to remain so. While contact with each natural parent is assumed to be in a child’s best interests the tenuous nature of the evidence of the Applicant’s attempts to locate the girlfriend and the likelihood of another relationship supplanting him are reasons why this factor – albeit a primary consideration – carries flimsy weight even assuming the existence of a child in Australia.
Any Non-Refoulement Obligations
There is no evidence of any punitive, persecutory or discriminatory consequences if the Applicant were to be returned to the Republic of Vietnam. There are no such international obligations on Australia.
OTHER CONSIDERATIONS
I have considered the other considerations (Clause 10 Direction 55) and I do not find any significant impediments to the Applicant’s return by reason of age (40 years), language (fluent Vietnamese), health (hearing affected but not affecting employment) or effect on immediate family beyond their disappointment and the loss of assistance to his mother. There are six other mature age family members to give that assistance.
FINDINGS AND CONCLUSIONS
The Applicant fails the character test in s 501(6) of the Act by reason of the length of his prison sentence. As to the exercise of discretion, the Applicant committed his first and only very serious crime within three years of first arrival. That crime was motivated by financial gain and posed a serious risk of harm by reason of the large quantity of highly addictive drug.
The Applicant explained his conduct as the product of gambling and duress. The sentencing judge did not accept that and neither do I. Not every gambler commits crimes and not every criminal is a gambler. The Applicant’s story of a generous loan with no security from a person met by chance, followed by a mysterious task to take something unknown to far-off Australia, with vague threats or promises of some reward, strains credulity. Add to that his parlous financial situation and large street value of the drugs and the judge’s finding that he committed the crime to make money is inevitable.
Whether he could resist the temptation of future gambling or of easy money by illegal transactions no one can say with certainty. What can be said is that within a very short time of first arrival the Applicant failed to abide by the expectation that he would obey the law and whether, by impulsive action or detailed planning, he engaged directly in large-scale attempted drug-running. He has not faced up to the criminality implicit in that offence – as shown by the lack of cooperation, questionable remorse and lack of frankness about the details of the offence. Based on the Applicant’s evidence, that has not changed since the sentencing in 2009. He was not sentenced for gambling and gambling is not a full explanation for the offence. The Applicant is in the “low risk category” for further offences but that is not negligible (although Mr Green did not adopt any “19% back in jail within two years” as a measure he did not state any particular figure). The judge found “reasonable prospects of rehabilitation “basically because of the lack of prior convictions (page 10).
My conclusions are that the Applicant committed a very serious crime within a short time of arrival and the risk of further serious offences is low, but not negligible. His strong family connections in Australia are an important factor but all primary and other considerations, in this case, are outweighed by the factor of the protection of the community. I give slight weight to any possible relationship with his ex-girlfriend and benefit to the supposed child although I do treat it as one primary consideration.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of .........[sgd]...............................................................
Associate
Dated 17 April 2013
Date of hearing
27 March 2013
Solicitors for the Applicant Ms My Yen Tran, MY.T Nguyen Solicitors Solicitors for the Respondent Mr Sean Kikkert, Department of Immigration and Citizenship
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