Truong and Minister for Immigration and Citizenship
[2010] AATA 490
•2 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 490
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5465
GENERAL ADMINISTRATIVE DIVISION )
Re Quoc Thang TRUONG
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date2 July 2010
PlaceSydney
DecisionThe decision under review is affirmed.
………………[sgd]……………...
Mr RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child – other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions
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RELEVANT ACTS
Migration Act 1958 (Cth) (the Act): ss 501
Migration Legislation Amendment Act (No 1) 2008
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CITATIONS
Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528
Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56; (2008) 102 ALD 521; [2008] FCAFC 132
Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689
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OTHER AUTHORITIES
Direction [no. 41] - Visa Refusal and Cancellation under section 501
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REASONS FOR DECISION
2 July 2010
Mr RP Handley, Deputy President
1. Mr Truong has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship to cancel Mr Truong’s visa on the ground that he did not pass the ‘character test’ because he has a substantial criminal record.
background
2. Mr Truong was born in Vietnam in 1959 and is aged 50. He is the third of nine children in his family. All his siblings, with whom he says he has “some limited contact”, live in Vietnam. His parents are deceased. Mr Truong left Vietnam by boat in about 1986 and travelled to Malaysia where he lived in a refugee camp until his resettlement in Australia. While in the refugee camp, he commenced a relationship with a Vietnamese woman, Ms L, with whom he has a daughter who was born in 1988.
3. Mr Truong arrived in Australia on 1 July 1988 as the holder of a Category K4011 (Refugee Program – Vietnamese) visa. Ms L and their daughter came to Australia in 1989 and they lived with Mr Truong in Bankstown where there is a large Vietnamese community. In 1992, after living together in Australia for about three years, Mr Truong and Ms L separated and his daughter went to live with Ms L. However, Mr Truong continued to see them on a regular basis. In about 1993, Mr Truong started using heroin and became addicted. From November 1993, for a period of two years until his arrest and detention for armed robbery in November 1995, Mr Truong had custody of and cared for his daughter after the intervention of the Department of Community Services. Mr Truong has continued to have only occasional contact with his daughter since then as a result, he states, of resistance to this from Ms L.
4. Mr Truong’s criminal history in Australia commences in 1989:
Date of Conviction Description of Offence Sentence 1989, 1 November driving whilst unregistered, exceeding speed limit, not produce licence, furnishing a false name fined $451 1990, 1 March assault on recognisance s556A to be of good behaviour for 18 months 1990, 17 December assault on recognisance self in the amount of $2000 to be of good behaviour for two years and accept the supervision of the probation and parole service 1992, 26 October indictable assault fined $455 1994, 14 June possession of prohibited drugs fined $500 1994, 12 August possession of prohibited drugs, goods in custody recognisance to be of good behaviour for two years and Rising of the Court 1995, 9 June supply of prohibited drug periodic detention three years (from 23 June 1995) 1997, 16 May armed robbery sentenced to three years imprisonment (commencing 27 November 1995) 1999, 18 November assault with act of indecency sentenced to imprisonment for six months 2000, 20 December goods in custody reasonably suspected of being stolen, processing prohibited drug, escape from lawful custody, supply prohibited drug sentenced to 6, 12, 6, and 20 months imprisonment respectively (non-parole period 15 months) 2002, 24 June breach of bail bail order made 2003, 7 January furnish false and misleading information fined $200 2003, 30 July possession of prohibited drug and supply of prohibited drug (2 counts) imprisonment for 6 and 16 months respectively (non-parole period 12 months) 2005, 18 August supply prohibited drug imprisonment for 2 years commencing 21 January 2005 (non-parole period 18 months)
5. A criminal record check dated 5 May 2010, also shows a conviction for common assault dated 26 March 2009 (charge date 17 July 2008). However, the record shows that on 1 April 2009 this conviction was annulled.
6. In relation to parole, on 30 November 1999, and again on 16 January 2001, the NSW Parole Board found that Mr Truong had breached his parole conditions and, on each occasion, ordered that he serve the balance of his sentence.
7. Mr Truong has been considered for deportation on a number of occasions: on 23 November 1998, the Minister’s delegate decided not to order his deportation and, on 1 December 1998, Mr Truong was warned that further convictions would lead to the question of his deportation being reconsidered; on 21 August 2002, he was issued with a notice of intention to consider the cancellation of his visa; on 9 August 2004, he was issued with a further notice of intention to consider the cancellation of his visa. Mr Truong made submissions in relation to the 2002 and 2004 notices.
8. On 31 January 2005, the delegate of the Minister decided to cancel Mr Truong’s visa on the ground that he does not pass the character test because of his substantial criminal record. Mr Truong applied to the Tribunal for a review of this decision. On 5 May 2005, the Tribunal affirmed the decision.
9. On 13 October 2009, the Federal Court, by consent, ordered that the Tribunal’s decision be quashed and the matter remitted to the Tribunal for re-determination, the Minister having conceded that the Tribunal’s decision was affected by jurisdictional error as a result of the Federal Court decision in Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; (2009) 109 ALD 260; (2009) 256 ALR 32; [2009] FCA 528 (and following the Federal Court decision in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56; (2008) 102 ALD 521; [2008] FCAFC 132 and the amendments made by the Migration Legislation Amendment Act (No 1) 2008).
relevant law and policy
10. Section 501(2) of the Migration Act 1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
11. Mr Truong has been sentenced to terms of imprisonment exceeding 12 months on four occasions. Thus, he does not pass the character test, a matter that he does not dispute.
12. It was therefore open to the Minister to cancel Mr Truong’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of primary considerations and other considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
13. The ‘primary’ considerations in Direction No 41 are set out in paragraph 10(1):
10.The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
14. These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
primary considerations
15. The relevant ‘primary’ considerations in Mr Truong’s case are the protection of the Australian community and the length of time he has been ordinarily resident in Australia. He was not a minor when he began living in Australia. Moreover, there are no relevant international obligations: his daughter is now aged 21; while Mr Truong arrived in Australia as part of Australia’s refugee program in 1988, he returned to Vietnam in 1993 without incident and there is no evidence to contradict the Minister’s contention that there is “no real chance that Mr Truong would suffer Convention-based persecution if he returned to Vietnam”, the Department having conducted an assessment of the situation in Vietnam in 2004.
the protection of the australian community
16. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
The seriousness of the conduct
17. With regard to the seriousness of Mr Truong’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:
Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are specially abhorrent to the whole community.
18. Examples of offences and conduct that are considered serious are listed in paragraph 10.1.1(2) and include assault, armed robbery, and “the production, possession, importation or trafficking of trafficable quantities of illicit drugs”. Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
19. Mr Truong’s criminal history includes a number of serious offences including assault, armed robbery and the possession and supply of prohibited drugs. On convicting Mr Truong of armed robbery on 16 May 1997, Judge Ford of the District Court of NSW noted that Mr Truong appeared to be the person “who held a gun” to the head of one of the victims, and, while noting that there were some compassionate grounds to be taken into account, commented:
... this type of offence is very, very serious, where three male persons invade premises and prey upon unfortunate women, one of whom had a little child with her, and the other lady was pregnant. All in all it must have been a horrifying experience for them.
20. While Mr Truong’s evidence is that he was addicted to heroin and his convictions are related to his needing to support his habit, I am satisfied that Mr Truong’s convictions involve very serious offences and that violence of the kind involved in the armed robbery and the supply of heroin is abhorrent to the Australian community. His convictions are in relation to offences committed over a period of about 15 years, Mr Truong’s last conviction, in August 2005, being for supplying prohibited drugs. In the period since, he has been either in prison or, since 26 July 2006, in immigration detention.
21. Mr Knowles, for Mr Truong, submitted that Mr Truong’s circumstances – his escaping from Vietnam and spending over a year in a refugee camp, the breakdown of his relationship with his former de facto wife, the separation from his daughter, the difficulty he has had in adjusting to life in Australia and, in particular, the language difficulties and the fact that to a large degree his convictions are the result of his heroin addiction - should be considered mitigating factors. However, they do not, in my view, excuse his serious criminal conduct involving both violence and the supply of heroin to others. I note that in sentencing Mr Truong for armed robbery (committed 27 November 1995) on 16 May 1997, Judge Ford also referred to Mr Truong possibly being motivated by a desire “to obtain some further money” to support his family. However, this does not excuse the violence described by his Honour, referred to above.
The risk that the conduct may be repeated
22. With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Truong’s previous general conduct and criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders including bail and parole orders.
23. In Mr Truong’s statutory declaration dated 26 March 2010, he states that in 2004, he “accessed the Drug Health Service at Bankstown Hospital and started on the methadone/buprenorphine program”. Nevertheless, in January 2005 he was again charged with supplying a prohibited drug and on conviction sentenced to a further two years’ imprisonment.
24. Mr Truong said he has changed:
I truly believe I am a different person now. For the first time in almost 18 years I am not using any drugs, not even methadone. In 2009 whilst in Villawood I decided that I didn’t need methadone anymore and I weaned myself off it. I realised that it is all in your mind – you can control your own life, it is up to you, not a doctor, or a counsellor or a drug like methadone.
25. Mr Truong acknowledged that he did not take methadone continually until he was imprisoned in late 2005. But, at that time, he stopped taking illegal drugs. He stopped using methadone in about July/August 2009 and has not used drugs since. He has also undertaken two drug and alcohol rehabilitation programs while at Villawood, each of two or three weeks’ duration, requiring attendance everyday for one to two hours in both the morning and afternoon. Mr Truong promises that he will stay off drugs. He knows that if he takes drugs again, he will go back to prison and will have no future.
26. Mr Truong said he has no wish to go back to his old life and no longer has any contact with his previous associates involved in the drug trade. In order to get away from the people with whom he formerly associated and who were bad influences, he needs to get away from Sydney. The opportunity has been offered to him by his friend Chung Nguyen, who works with the Vietnamese community in Adelaide. Mr Nguyen has told him that he can help Mr Truong with accommodation and employment and with support. Mr Nguyen provided a letter dated 12 February 2010 to this effect.
27. Mr Truong said he first met Mr Nguyen in 1988 soon after arriving in Australia. Mr Nguyen lived in Sydney at that time and then moved to Adelaide some years ago. Mr Truong accidentally came into contact with Mr Nguyen again through a friend and they began speaking on the phone. Then Mr Nguyen came to visit him in Villawood. Mr Nguyen said that if Mr Truong quit taking drugs, he would help him in Adelaide.
28. Mr Nguyen gave evidence by conference telephone that for the past six or seven years, he has helped drug addicts who do not have accommodation or work. He first came into contact with Mr Truong in 2008/2009 when a client Mr Nguyen had helped in Adelaide was arrested and detained in Sydney. The client told Mr Nguyen of Mr Truong’s problems and gave him Mr Truong’s telephone number. Since that time, he and Mr Truong have spoken on the telephone on many occasions and Mr Truong has told him that he wishes to change his life and will try his best to do so. Mr Nguyen said he has never met Mr Truong in person.
29. Mr Nguyen said he is ready to help Mr Truong. Mr Nguyen runs a support group for 10 clients who, with two staff, attend a monthly meeting when they discuss various topics, including health matters where information is provided to the clients. Mr Nguyen also provides drug counselling to clients when required to help them quit drugs – he said three or four out of every 10 who try to quit drugs do so successfully. He can find Mr Truong somewhere to live – he has friends who can provide a room - and will help find him a job.
30. Mr Nguyen said Mr Truong told him that he had been in prison many times, having been convicted of offences such as stealing and selling drugs, and that the Department of Immigration considered him a dangerous person. Mr Nguyen is aware of Mr Truong’s background and of his being separated from his wife and child. Mr Truong has talked about his daughter with whom he wants an affectionate relationship.
31. I am satisfied that Mr Nguyen would be able to provide Mr Truong with support if he were allowed to remain in Australia. It is difficult to know what to make of their conflicting evidence as to how long they have known each other. I am inclined to think that Mr Truong may be mistaken in his recollection and in any event, in my view, little turns on this.
32. The Minister provided the Tribunal with a copy of 19 incident reports involving Mr Truong in Villawood Detention Centre. Most of the incidents appear to be relatively minor. There are some involving drug‑taking implements - ‘bongs’ - or other prohibited items, and one report of ‘ice’ being found in Mr Truong’s room. There are 10 reports of incidents, the majority being described as ‘minor’ in nature, in which Mr Truong was aggressive, threatening, yelling and abusive, or involved in fighting.
33. Mr Truong was asked about the reports of the incidents described as ‘major’. In particular, he said he was not involved in an incident in 2008 when one of the nine Vietnamese men in Villawood stabbed “an Islander” with a knife. Mr Truong said there are problems between the Islanders and the Vietnamese in Villawood and agreed that there had been more than one incident involving confrontations between them. On the occasion of the stabbing, the Islanders had assaulted a Vietnamese man first and the Vietnamese men went away and got a knife with which the Islander was stabbed. Mr Truong said he was not involved in the violence. Nevertheless, along with five others, he was arrested as a result of this incident by the police and was one of the three charged. He pleaded ‘not guilty’ and went to court on four occasions. After the closed‑circuit television footage of the incident was shown, the judge dismissed the charge against him because there was not enough evidence to support the charge. The other two men were convicted.
34. Mr Truong said he has never been arrested for possession of drugs while he has been in Villawood. He was asked about ‘bongs’ being found in his room. He said that others came into his room because he had a DVD player that they used to listen to music. Some of them used marijuana. They would have ignored him if he had asked them to stop. He does not know who put ‘ice’ (methamphetamine) in his room. He denied ever having used or supplied marijuana or ice – he was taking methadone at the time which is not compatible with marijuana or ice. On two occasions when implements for taking drugs were found in his room, he asked the staff to allow him to have a urine test to prove that he had not taken these drugs, and the results showed that he had not taken these drugs. Mr Truong said after one of the incidents, when he was sharing a room, he asked to be moved to a single room, and thereafter if someone wanted to use his DVD player he would lend it to them.
35. Mr Knowles contended that incidents in Villawood should be viewed differently from those in the community, remembering the long period for which Mr Truong has been detained there. I agree that the incident reports suggest tension between detainees giving rise to arguments that develop into fights. Mr Truong has been involved in some fights and the reports indicate that he can become angry and aggressive at times. To what extent there was provocation on those occasions is not clear. Those incidents have not resulted in any further action against Mr Truong except on the occasion of what appears to have been fighting between Vietnamese and “Islander” detainees when the Islander was stabbed and Mr Truong was one of three Vietnamese men charged. As noted above, charges against Mr Truong in respect of this incident were ultimately dismissed.
36. In my view, all that can be made of the incident reports is that Mr Truong may have a problem managing his anger or frustration and that he is still prone to associate with those who get involved in illicit activity, even if, on his evidence, he does not participate in that activity. A psychological report on the departmental file prepared by Katherine Barrier at the request of Mr Truong’s solicitors in April 1997 states that Mr Truong’s presentation and history “suggest he is a man of limited intellect, but not developmentally disabled”.
37. In terms of Mr Truong’s criminal history, bearing in mind that Mr Truong has been in prison or immigration detention for the past five years, that history is relatively current. His history of reoffending indicates that, at least in the past, he was not deterred by the periods of imprisonment served. Moreover, the breach of good behaviour bonds, bail conditions and parole orders indicates little respect for judicial orders: when on the two occasions his parole was revoked, he was ordered to serve the balance of his prison sentence. I note that he also continued to offend despite being warned of the possibility of deportation in 1998, 2002 and 2004.
38. After many years in Australia, Mr Truong still has very limited English skills and has not, it appears, adapted well to the community here. Apart from his daughter, with whom he has little contact, he has no real ties to the Australian community and his only prospect of support is from Mr Nguyen whom, according to Mr Nguyen, Mr Truong has never met. Given Mr Truong’s history of reoffending, his apparent lack of respect for judicial orders and, it appears, some propensity to get ‘into trouble’ either by reason of with whom he associates or because of his anger or frustration, I am not confident that he will not reoffend notwithstanding that I accept he is currently not taking drugs. Thus, given the very serious nature of the offences for which Mr Truong has been convicted and what in my view is a moderate risk of his reoffending, the protection of the Australian community strongly favours the cancellation of Mr Truong’s visa.
length of time ordinarily resident
39. Mr Truong has been an Australian resident since his arrival on 1 July 1988. He has been absent from Australia during that period on one occasion, in 1993, when he returned to Vietnam for about two and a half months. Paragraph 10.3(1) of Direction No 41 states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”. In this instance, there was a period of less than a year between the time Mr Truong arrived in Australia on 1 July 1988 and the time he was charged with traffic offences on 24 March 1989. However, while I accept Mr Knowles’ submission that while not trivial, these traffic offences are not serious in the context of visa cancellation, I note that the first non-traffic offence with which Mr Truong was charged was that of assault, on 14 January 1990, and that this was followed by further assault convictions and possession of drug convictions not long thereafter.
40. Because of this relatively short period of non-offending after arriving in Australia, and bearing in mind the fact that Mr Truong has been sentenced to terms of imprisonment on five occasions spending lengthy periods in prison, this consideration should not be treated as a consideration favourable to Mr Truong. Rather it should be regarded as a neutral factor: RePuafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].
OTHER CONSIDERATIONS
41. As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Truong’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with Vietnam, the hardship that may be experienced by both Mr Truong and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
42. Mr Truong has no family in Australia other than his daughter, who is aged 21. He was expecting her to come to the hearing but she did not do so. Mr Truong has no contact with his former de facto wife Ms L (who is now remarried), and who, according to Mr Truong, has tried to prevent him maintaining contact with his daughter. He appears to have had little regular contact with his daughter – she has visited him a few times in Villawood but not since September 2009. He used to write to her very week but no longer does so because he has had no reply from her recently and thinks Ms L, with whom his daughter lives, just throws his letters in the bin. The problem is that although his daughter speaks Vietnamese, she does not read it. She is therefore reliant on her mother to read his letters to her. He used to speak to his daughter on the phone but Ms L removed her SIM card when he tried to phone her and they have not spoken for a “long time”. The last time she phoned him was in 2009. Mr Truong said he does not understand Ms L’s attitude. All he wants is to have a relationship with his daughter.
43. Mr Truong is now 50. He appears to have attended high school in Vietnam, although to what age is not clear. His English skills are poor and have obviously been a major problem in trying to adjust to life in Australia. He states that he undertook a literacy program while in Goulburn and Long Bay prisons but still has difficulty with comprehension and speech. A NSW Probation Service report dated 9 December 1994 also suggests he may have comprehension problems in the Vietnamese language. His work experience in Australia is very limited and there is no evidence of him having any special skills.
44. Mr Truong’s evidence, referred to above, is that he is no longer taking heroin and is off the methadone program. Although he has Hepatitis C from the past sharing of needles, for which he has received treatment, this does not affect him on a day-to-day basis. In his statement, Mr Truong said “at this stage the condition is dormant” but that he is concerned that if he has a recurrence of the condition, “I will not be able to afford the medication in Vietnam and I don’t even know if it is available in Vietnam”. No reference was made to this at the hearing.
45. Mr Truong acknowledges having siblings in Vietnam but says he has limited contact with them. He states that if he has to return there, he:
will have nowhere to live, no job, no money. I will be homeless. My siblings have their own families and are not well off. They cannot support me.
I do not want to go back to Vietnam. It holds no good memories for me. I don’t want to leave my daughter and I will never see her again before I die if I am deported from Australia.
46. With regard to previous warnings in relation to his conduct, Mr Truong said he had no recollection of a warning in December 1998. He said he certainly did not read English well enough to understand a written warning. However, I note that he was interviewed by an immigration officer about this on 16 October 1998 and acknowledged receipt of the warning in writing on 3 December 1998. Mr Truong also has little recollection of being invited to make submissions as to why his visa should not be cancelled in 2002, although he acknowledged that another prison inmate completed the questionnaire for him. He recalled that in 2004 he was able to speak to an immigration officer on the phone about this with the assistance of an interpreter.
47. I acknowledge that if Mr Truong is deported to Vietnam he may suffer hardship. He is obviously very attached to his daughter but, otherwise, although he has been offered support by Mr Nguyen, he appears to have few ties to the Australian community. Further, while I also acknowledge it is likely that his daughter may suffer some hardship if Mr Truong is deported to Vietnam, remembering that Mr Truong had sole custody of her as a child between November 1993 and November 1995, there is no evidence as to the level of hardship she might suffer. I note that contact between them has been very limited in recent years. Although it is also many years since Mr Truong lived in Vietnam, he spent two and a half months there in 1993, he has siblings there with whom he has maintained contact, and there appear to be no significant language or cultural barriers and, despite his fears, nothing to suggest that he will not be able to reintegrate into the community there. Moreover, his health seems to be stable at present.
48. In conclusion, I am not satisfied that these other considerations weigh heavily against the primary consideration of the protection of the Australian community which strongly favours the cancellation of his visa. Thus, in my view, the s 501 discretion should be exercised to cancel Mr Truong’s visa.
Decision
49. The decision under review is affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: …….[sgd].....................................................................
Associate
Date of Hearing: 10 June 2010
Date of Decision: 2 July 2010
Applicant counsel: Mr P Knowles
Respondent representative: Ms A Linacre, Clayton Utz
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