Truong and Minister for Immigration and Citizenship

[2008] AATA 515

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 515

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/1594

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		NGOC HUNG TRUONG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date20 June 2008

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

Senior Member

MIGRATION – s501 notice of visa cancellation – applicant entered Australia as an infant refugee – subsequent multiple convictions and terms of imprisonment for possession, trafficking and use of illegal drugs – recent convictions for serious assaults when influenced by drugs – multiple notices issued by the Minister – decision by AAT in 2005 set aside a s 501 notice – Direction 21 – discretion not favourably exercised – decision affirmed

Migration Act 1958 (Cth) s 499, s 499 (2A) and s 501

Re Jupp Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

REASONS FOR DECISION

20 June 2008   Mr John Handley, Senior Member

1.      The applicant applies to review a decision made by a delegate of the Minister on 3 April 2008 to cancel a Class BB, Sub‑class 155 (Five Year Resident Return) visa.  For reasons which will follow I am satisfied that the decision under review should be affirmed.

2.      The hearing was convened on 16 June 2008.  Both the applicant and the respondent were represented.  A number of documents were received into evidence and will be referred to in these reasons.  The applicant gave evidence by video link from the Marngoneet Correctional Centre.  He was assisted by a Vietnamese interpreter.  Letters were written in support of the applicant by persons close to him and lodged as exhibits.  Those persons did not attend the hearing.

3.      The applicant lodged a statement of his evidence, which he adopted and which reads as follows:

My name is Hung Ngoc Truong. I am 32 years old and have resided in Australia for 18 years. My past has been troubled due to my past severe addiction to heroin and the use of other substances. I have two beautiful children to whom I give all my love as a father. The youngest is Wendy she is 8 years old (my biological daughter) and the eldest Dylan who is 10 years old and is my non-biological son. Both of my children are not aware of my incarceration due to my firm beliefs that burdening my children with my current situation may have possible future adverse effects, this belief and opinion is also shared by their biological mother, Ms Nhung Tran.

I would like to inform the court of my intentions in leading a drug free lifestyle and how I plan to achieve this. I have aspirations towards being a great father, member of the Australian society and also the Australian Vietnamese Community.

Firstly since substance abuse has been in my life, terrible things have happened to my victims and has caused a ripple effect onto the Australian society. I feel a sincere sympathy towards all who have been directly or indirectly affected by my actions and behaviour.

I am results orientated and have these plans before me; if released from prison on parole, I wish to be placed into drug rehabilitation for as long as it takes me to gain all tools necessary and to be supported by clinical staff so I can remain drug free. I am currently seeking advice from the Salvation Army in this area to see what is available for me. I am also learning more about Naltrexone therapy and will use my money saved from prison and drug rehab toward an implant if myself and Clinical staff decide it is needed as part of my rehabilitation.

Clariniche Pty. Ltd. Run the programs here at Marngoneet Correctional Centre (M.C.C.) for drug/alcohol prevention starting with the 40 hour Exploring Change, 40 hour Semi-Intensive as well as the Intensive 6 month course. I’m excited that I have this opportunity so I can delve into where I went wrong and why. These courses are tailored to specifically suit people who have done previous courses but failed to achieve the desired results from those courses. One to one counselling is also available. At present, I have settled into M.C.C well and currently reside in a 6 man self catered lodge. I live with 3 fellow Vietnamese, one Chinese and one Australian. People who I have taken under my wing as I provide my cooking skills, budgeting skills and my peer listening skills in ensuring a safe and welcoming environment for all in our lodge. I am the oldest in the lodge and tell them about how I’ve grown and changed and challenge misconceptions and beliefs so they too can live better and drug free lives.

M.C.C is a community of neighbourhoods that facilitates change within it’s structure: the name “Marngoneet” is taken from the local Wathaurang Community language and means, “to make new.” The name reflects the prisons focus on rehabilitation and offers a respectful gesture to the local Wathaurang people. I have also enclosed a Department of Justice leaflet. At M.C.C I have started English class and have enrolled in maths, hospitality and business studies as well as VCAL (Vic Cert Adult Learning) which is an industry equivalent of VCE.

If released I will then apply for the N.E.I.S program (New Enterprise Incentive Scheme) and achieve Certificate IV in small business management to follow on from Certificate II and Ill. My end goal is to run a small and successful Vietnamese Cuisine Café/restaurant in Melbourne’s CBD in one of the awesome dining sectors of Melbourne, this goal has me excited and ambitious and this is will further my standing as a member of the Australian Community and Australian Vietnamese Community so I can put back, a fundamental rule of my Buddhist faith.

I now have a higher self esteem and self worth due to my growth away from drug use/substance abuse and am coming to terms with my short falls in my life after having clarity and insight into my drug use and to succeed and progress as a father, a small business owner/operator and community member.

My focus on future and desire to live in Australia and better my own and family’s future is my highest priority. I know the track forward will not be easy, it will be challenging but rewarding and I can honestly say my possible future in Australia excites me. My alternative possible future scares me. I fully understand and appreciate your role as the court and that the Australian community do need protection from my past behaviours. I can say that no protection is needed for my future behaviours. I also want to be able to not waste what I have leaned [sic] on “the wrong side of the tracks” my experience I do not want others to follow and in the future I want to educate young Vietnamese/Asian youths and Australians about not using Substances. My current relationship with my children is very strong as I call them 3-5 times per week and send them cards and letters, they always ask “when are you coming home Daddy?” “we have waited so long” and “we have so many things to show you”. I as a father have a deep need to protect my children from Drugs and other things in life and fear that if I was no longer in Australia I surely would not be able to be their for my Children. I can not imagine not meeting my Daughters or Sons first Boyfriend/Girlfriend, taking them and getting them ready for the Debutante Ball, finishing V.C.E., University and possibly missing their Wedding Days. All this is far too hard to imagine and brings me great sorrow.

I look forward to working closely with the Immigration Department, Adult Parole Board and Corrections Victoria and clinicians to ensure success for myself, the community and most importantly my family. Thank you.

4.      The applicant is presently 32 years of age having been born on 12 April 1976 in Vietnam.  He was educated until he was nine years of age.  For reasons which remain unclear, the applicant then departed Vietnam with an Uncle, an Aunt and two of his brothers and travelled to Hong Kong where they were detained in a refugee camp for three or four years.  Eventually they arrived in Perth and later moved to Melbourne.  The applicant's parents, three brothers and five sisters remained in Vietnam where they continue to reside.

5.      The applicant was previously in a defacto relationship with Nhung Kim Tran and they have one child, Wendy, born on 1 July 2000.  Ms Tran had another child, Dylan, born in 1998 from a previous relationship.  Dylan understands that the applicant is his biological father.

6.      The decision to cancel the applicant's visa was made on character grounds pursuant to s 501 of the Migration Act 1958 (the Act).  It was conceded by the applicant's representative that he did not pass the character test by reason of him having a substantial criminal record pursuant to s 501 (6) and (7) of the Act, having been sentenced to a term of imprisonment of 12 months or more.

7.      The applicant admitted during the hearing that a Court Outcomes Report which formed part of the T‑documents was accurate.  In part, the report shows:

·On 14 March 2006 at the County Court in Melbourne the applicant was convicted and sentenced to an aggregate period of 12 months for the offences of reckless conduct endangering serious injury and unlawful assault and;

·At the County Court in Melbourne on 17 July 2007 the applicant was convicted and sentenced to a term of three years imprisonment for offences of armed robbery, theft and resisting arrest.

8.      When reviewing a decision to cancel a visa on character grounds, the Tribunal is required to exercise a discretion, issued by the Minister as a Direction pursuant to s 499 of the Act.  The Direction is known as Direction No 21.  Compliance with the Direction is mandatory (refer s 499 (2A)).  Where an applicant does not satisfy the character test (as in the present application) Part 2 of Direction 21 compels that regard be had to the published criteria when exercising the discretion to decide whether the holder of a visa, over which a cancellation decision has been made, should be permitted to remain in Australia.

9.      In the exercise of the discretion under Part 2, it is noted that the applicant successfully reviewed, in this Tribunal, an application made in September 2004 to cancel the visa that he then held (refer AAT Application V2004/1283).  The Tribunal decided on 3 February 2005 that the applicant did not pass the character test because of his substantial criminal record but decided to favourably exercise the discretion under Part 2, thereby permitting him to remain in Australia.  The substantial criminal record then existing arose out of a conviction on 26 June 2002 in the County Court at Melbourne of four years imprisonment (with a non‑parole period of three years) for the offence of trafficking in a drug of dependence (heroin).

10.     The preamble to Part 2 of Direction 21 records that there are three primary considerations (found at paragraphs 2.3 – 2.16).  Regard must be given to the importance of those paragraphs and a balancing process should be adopted with regard to both the primary considerations and the circumstances of the applicant.  Other considerations are set out at paragraphs 2.17 – 2.24 which are to be taken into account but which are regarded as having less weight than the primary considerations.

11.     The primary considerations recorded at paragraph 2.3 are as follows:

(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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

protection of the australian community

12.     As maybe seen, especially at paragraph 2.5, there are three elements which must be considered namely, the seriousness and nature of the conduct, whether there is any likelihood that the conduct may be repeated (including the risk of recidivism) and whether visa cancellation may prevent or discourage similar conduct.

13.     At paragraph 2.6 the stated policy of the Minister is made very clear by the description of offences which are regarded as being very serious.  Sub‑paragraph (a) records (insofar as the present application is concerned) that the distribution, trafficking or selling of illicit drugs by persons demonstrates a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.  Those that have sought profit from the supply of drugs, whether or not motivated by their own need for illicit drugs, should be viewed as extremely serious offenders.  The sub‑section continues that crimes involving drug trafficking which puts the lives of young Australians at risk (will) be viewed as completely unacceptable to the community.  If any further indication of the Minister's intention be needed, a separate sub‑paragraph records that illicit drugs of dependency or addiction –heroin specifically is identified – is of particular concern to the Government and the community.

14.     In addition to the offences which have been referred to earlier and which gave rise to the finding of a substantial criminal record, the applicant unfortunately has a long criminal history evident from the summary of convictions in Victoria found within the T‑documents and which he acknowledged in evidence to be accurate.  He has appeared before Magistrates' Courts in Victoria on two occasions charged with the offence of traffic heroin, three appearances before Magistrates' Courts for use of heroin and three appearances before Magistrates' Courts for possession of heroin.  He also appeared on one occasion for possession of amphetamines.  The first appearance before a Magistrates' Court was on 23 May 1996 when he was then convicted and received a suspended sentence.  Thereafter the penalties progressively increased by referral into an intensive correction program and eventually being sentenced to lengthy periods of imprisonment.  The applicant admitted a drug habit and said that he had been consuming heroin on and off for ten years.  However, the earliest convictions for use and possession of heroin were in July and September 1997 respectively and it would appear that the applicant has underestimated the extent of his heroin consumption.

15.     Persons who use illicit drugs – especially heroin – are vulnerable to the risk of addiction by continuing use.  Persons rapidly become caught in a spiral of needing to satisfy the addiction, having to seek a supply and frequently expend large sums of money.  The effects upon those persons can be wide ranging and extend to serious illness and sometimes death.  The proliferation of illegal drugs of addiction in the community is a serious concern which causes enormous workloads and expenditure of monies by health and welfare professionals and law enforcement agencies.  Often, persons who traffic do so as agents of others and are paid in kind, that is, rewarded or paid by provision of drugs of addiction.  Persons who traffic in illegal drugs cause harm to other persons and disregard the effects that drug consumption will have on these persons and their families.

16.     Unfortunately the applicant was exposed to drug consumption at a young age, he became addicted and in the absence of monies, agreed to traffic on behalf of others and he was paid in kind.  His illegal conduct over many years resulting in multiple court appearances demonstrates the broad nature of the conduct (specifically identified at paragraph 2.6) as being very serious.  Considerable weight should be attached because the Australian community does need to be protected against persons such as the applicant who has demonstrated a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.

17.     It would also appear that the applicant did profit from the trafficking of drugs by receipt of monies.  He was convicted on 30 June 2000 at Dandenong for possession of monies being the proceeds of crime.  A police memorandum of 7 April 2006 records the applicant as having a drug habit in excess of $700.00 per week.

18.     The gravity of the applicant's conduct (and his addiction) progressively increased because in October 2005 he was found to have assaulted the publican of the Mona Castle Hotel in Seddon by stabbing him twice with a syringe containing a mixture of his blood and amphetamines.  It was that conduct which gave rise to the County Court appearance in February 2006 resulting in a period of imprisonment of 12 months.  In January 2007, the applicant (who was armed with a hammer) in company with another person broke into the home of other persons, who were his suppliers.  He bound one of them and threatened them with a knife.  Threats to kill were also made.  He returned later and was eventually found by the police in other premises.  On each of the above two occasions the applicant was under the influence of illegal drugs of addiction and prescription drugs.  The offence of January 2007 falls squarely within paragraph 2.6 (e) namely, armed robbery and home invasion.

19.     In concluding this part, paragraph 2.7 directs that regard should be had to the extent of the person's criminal record, the number and nature of the offences, the duration of the sentences and the periods of time between offences.  Regard should also be had to the repugnance of the crime.  As indicated earlier, the sentencing of the applicant progressively increased from the first conviction in 1996 and culminated in a period of imprisonment of three years arising out of the last appearance at the County Court on 17 July 2007.  The victims of the offence of January 2007 must have been terrified, having had the privacy of their home violated by the invasion of the applicant and then threatened, with weapons.  It is not known whether the hotel manager suffered any long term effects of being stabbed with a syringe.  It would not be difficult to imagine that he also would have been terrified of the potential consequences of such an assault.

20.     The Australian community does need to be protected against the behaviour and conduct of the applicant which must be regarded as very serious.  Considerable weight should be attached in favour of visa cancellation.

21.     The second part of the first primary consideration examines whether there is a likelihood that the conduct may be repeated, including the risk of recidivism.  This in part has been discussed above with respect to the applicant's criminal history, the nature of the offences and the increasing seriousness of the criminal conduct.

22.     Of particular concern however has been the repetition of the applicant to offend, despite being put on notice that he was at risk of having his visa cancelled.  For example, in February 2005, the applicant successfully challenged in this Tribunal an application then made by the Minister to cancel his visa.  By reference to the Reasons For Decision of the Tribunal in the review proceedings it would appear that a considerable body of documented evidence was lodged in support of the applicant, including a report from the Parole Board who recorded positive comments with respect to him abstaining from drug consumption.  The Tribunal acknowledged that the applicant did need to have continuing drug rehabilitation but was satisfied upon the evidence then lodged, that the chances of reoffending are less than his six year pattern of offending would suggest (refer paragraph 105 of Reasons For Decision).  Unfortunately, in October of the same year, the applicant was consuming heroin and ice and it was in that month that he assaulted the publican in Seddon with a syringe (refer earlier).  That offence resulted in an appeal against a decision of a Magistrate in the County Court in February 2006 and which resulted in him being released from prison in August or September 2006.  On 2 November 2006, the applicant was served personally with a notice to cancel his visa.  Yet in January 2007 and when then under the influence of heroin, ice and prescription medication, the applicant broke into the home of other persons in circumstances described earlier.

23.     The applicant was allowed to stay in Australia as a consequence of and by the trust given to him by the previous Tribunal decision but he returned to consumption of drugs and he reoffended.  He was put on notice in November 2006 that it was intended to cancel his visa yet, one and a half months later, and again whilst under the influence of illegal drugs, he committed a number of serious criminal offences.

24.     I acknowledge that the applicant has had considerable difficulty abstaining totally and permanently from consumption of addictive drugs.  There have been a number of occasions when he has been drug free and it would appear from the Reasons For Decision from the previous Tribunal proceedings that he had access to counselling and welfare opportunities which assisted him in becoming drug free.  It was learnt in these proceedings that the applicant has abstained from drugs for a considerable period, he is awaiting commencement of an intensive drug rehabilitation program and did express (during these proceedings) that it is his intention to remain drug free for the remainder of his current sentence.  Upon release he intends to obtain employment, provide care for his children and ultimately to operate his own café.

25.     Whilst the applicant has expressed a positive state of mind with respect to the future, I regret that his past history does not offer me any confidence that the risk of recidivism has been eliminated or has been reduced.  Indeed, the applicant's past criminal history suggests that on occasions where he has been released from custody or has received favourable consideration (for example, successfully reviewing a previous decision of the Minister in proceedings in this Tribunal), that he has returned to his previous habits of consuming drugs and reoffending.

26.     I think on balance I have no alternative but to conclude that the likelihood of past conduct may be repeated and on that basis I attach considerable weight to that risk.

27.     The remaining part of the first primary consideration is the issue of general deterrence.

28.     It is impossible to know whether the outcome of these proceedings will be known beyond the applicant's immediate family although I expect that some discussion may be generated, either in specific or general terms, that criminal activity will not be tolerated and may result in visa cancellation.

29.     It would be hoped in those circumstances that persons may become deterred from committing offences thereby satisfying the objective of paragraph 2.11.

30.     In concluding this part and for the reasons expressed earlier, I am satisfied that the extent, duration and seriousness of the applicant's criminal conduct, the affect of that conduct on other persons, his return to drug consumption and reoffending when released from imprisonment, his disregard for the trust placed in him by a Member of this Tribunal in previous review proceedings and his disregard for the notice served on him by the Minister's delegate in November 2006, considerably outweighs any favourable consideration that might be given to him with respect to periods previously of abstinence from drug consumption.

31.     The second primary consideration is the expectation of the Australian community.  Paragraph 2.12 records that the Australian community would expect non‑citizens to obey Australian laws.  Further, if there has been a breach of those laws or if there is a significant risk that laws will be breached or where the non‑citizen has been convicted of offences, it may be appropriate to cancel a visa.

32.     Counsel for the applicant submitted (refer Re Jupp Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 – Jupp) that whilst there might be sections of the Australian community that hold diametrically opposed views with respect to immigration, a proper construction of paragraph 2.12 was to consider the expectations of the Australian community comprised of middle of the road reasonable members of the Australian community who do not hold extreme views one way or the other.  I agree with that observation.  However the circumstances of the present application are remarkably different to those in Jupp where the visa applicant had been convicted of armed robbery 20 years prior to the notice having been served by the Minister and subsequently rehabilitated successfully from drug addiction, had married and was found to be a responsible family man.

33.     In the present application, the applicant has a long history of drug abuse resulting in detection and convictions.  The nature of his offences have escalated over the years and recently the nature of the drugs consumed by him have increased in severity from heroin to ice.  There have been some attempts at treatment and rehabilitation of drug addiction but on occasions where he has been released from gaol he has returned to his former habit and has reoffended.  He also successfully challenged an attempt in 2005 to have his visa cancelled but subsequently reoffended (refer earlier). 

34.     It is my view that middle of the road Australians would now conclude that the applicant has not honoured the trust that was given to him nor has he demonstrated a pattern of behaviour which would give confidence that he would not reoffend when he is released from prison.  Whilst sympathy would be extended to the applicant, having regard to his circumstances of arrival in Australia when he was an infant, he is now a mature age adult.  I think the Australian community would expect that he be removed from Australia.

35.     The third primary consideration is the best interests of the children.

36.     The applicant is the father of Wendy who is approaching her eighth birthday.  The applicant's former partner gave birth to a child, Dylan, in a former relationship.  Dylan understands the applicant to be his father.

37.     The applicant said in evidence that he communicates with both children between three and five occasions per week by telephone and intends to resume his relationship with them when released from gaol.  He said on occasions when he had not been incarcerated that he collected or delivered the children to school and interacted with them.  The children do not know that he presently is in gaol and I would give the applicant credit for shielding them from his present circumstances.

38.     I would acknowledge that in the event that the applicant returns to Vietnam, he would be denied contact his children and whilst he may then communicate with them by telephone, the cost and convenience of doing so would be remarkably different to the present ease of communication.  I also acknowledge that it is in the interests of the children to have a continuing association with both parents and by him returning to Vietnam, that association will be denied.

39.     However the past contact between the applicant and his children has been limited and for a greater part of their lives, he has been absent either in prison or on remand.

40.     On balance, despite the best interests of the children being served by them having an ongoing relationship with both parents, I am satisfied that his past behaviour, the risk of reoffending and the expectations of the Australian community support the conclusion that greater weight should be attributed to a decision that the applicant be removed from the Australian community.

41.     The remaining Part of Direction 21 compels an examination of a number of other considerations commencing at paragraph 2.17.  The Direction dictates that matters in this Part are to be given less weight than the primary considerations but are no less relevant.

42.     The first part applicable to the applicant is consideration of the degree of hardship that may be caused to the applicant's immediate family members resident in Australia.  This part would attach significance to the relationship between the applicant and his daughter and with Dylan who would both be denied contact with him in the event that returned to Vietnam.  That will cause hardship but for reasons expressed earlier, the applicant has had limited personal contact with the children and contact whilst in gaol has been exercised by telephone only.  It is not likely that the children would travel to Vietnam to see him in the immediate future.  It is not inconceivable that they might travel to Vietnam when they are older and I would acknowledge that the relationship then would be different to the quality and nature of the relationship that presently exists.  I understand that the applicant has two adult brothers living in Australia but nothing was heard of them during these proceedings and the papers filed would indicate that the applicant has little or no contact or relationship with them.

43.     It was learnt that the applicant has returned to Vietnam on two occasions since he first arrived in Australia and has on those occasions stayed with his parents and has had contact with other brothers and sisters residing in Vietnam.  It would be expected that he would return and stay with his family in Vietnam.

44.     A number of documents were lodged at the hearing indicating that the applicant has undertaken, in recent years, a number of training and rehabilitation type programs which have been successfully completed.  Those programs were undertaken through facilities made available by the Gordon Institute of TAFE and the Kangan Batman TAFE.  The applicant presently is completing a program through the East Gippsland Institute of TAFE in information technology and written and spoken English.  He is presently enrolled to commence a number of hospitality type courses.  He has also completed horticulture, basic first aid and occupational health and safety programs.  He is about to commence a semi‑intensive drug program.  On ten occasions since April 2007, the applicant has supplied urine samples which have consistently returned a negative result for the presence of six listed substances.  These initiatives are to the applicant's credit and would point to evidence of recent good conduct.  I would attach some weight to these initiatives.

45. In concluding this part (paragraph 2.17 (k)) the applicant has been formally advised by officers of the Department that his conduct has brought him within the visa cancellation provisions of s 501 of the Act but he continued to offend. In the T‑documents lodged in these proceedings there are seven notices issued to the applicant on 11 November 2004, 30 May, 28 June, 18 September and 25 October in 2006 and on 29 August and 31 October 2007.

46.     The applicant suffers from asthma and Hepatitis C.  In his Statement of Facts and Contentions he pleaded that ongoing treatment and management be undertaken in Australia.  It is understood that health facilities in Vietnam are of a lesser standard than in Australia, but there is no evidence that these illnesses are beyond the capacity of physicians in Vietnam to treat and manage.

47.     The remaining Part of Direction 21 is to consider whether any international obligation exists and whether there are foreseeable consequences that would be faced by a non‑citizen if removed from Australia.

48.     The applicant was the subject of an International Obligations And Humanitarian Concerns Assessment on 16 March 2007.  The assessment was of considerable length and detail.  It concluded that there was no evidence that the applicant would be tortured or executed as a result of his criminal convictions in Australia if he returned to Vietnam.  There was no evidence that he would be retried for his criminal convictions and no reason to believe therefore that he would be exposed to the risk of further punishment.  By reason of a Memorandum of Understanding between Australia and Vietnam, the applicant's convictions in Australia would be disclosed to Vietnamese authorities but there was no evidence that criminal deportees were exposed to any further punishment.  It was reported that limited drug addiction facilities now exist in Vietnam and there is an increasing number of rehabilitation centres offering methadone treatment.

conclusion

49.     The circumstances giving rise to this application are tragic and the conclusion that I have reached gives me no comfort.  The prevalence of drugs of addiction in Australia is in part responsible for the applicant's behaviour over the years which has in part also caused him to be a person who has distributed and made drugs available to other persons.

50.     On the one hand, the applicant's personal circumstances are deserving of some sympathy and compassion.  He was taken from his immediate family for reasons which remain unclear and travelled to Hong Kong where he resided in a refugee camp for three or four years.  He eventually arrived in Australia at the age of 14 and found his way to Melbourne.  He had limited education and no employment of any significance in Australia.  He arrived here without being able to speak or read English.  He became vulnerable to the influence of other persons and commenced engaging in criminal activity which became a pattern of his life since 1996.  Multiple convictions did not reduce his criminal conduct but instead it appears that the nature and severity of his criminal behaviour increased resulting in progressively greater periods of incarceration.  Attempts at resisting drugs have been made but upon release from gaol, the applicant has resumed his previous habits.  During his current period of incarceration it would appear that he has made good progress towards rehabilitation from drugs and has successfully completed a number of training programs that may equip him for future employment.  It is regrettable that those programs were not undertaken many years ago because it may well have been that he would not have continued to offend and therefore would not find himself in his current predicament.

51.     The conduct of the applicant by the repetition of his offending, his engagement in drug distribution and assault of others has weighed heavily in the discretion I am compelled to exercise under Direction 21.  I would prefer to be in a position of deciding that the applicant be given a chance to complete his rehabilitation and demonstrate that he is a person worthy of being allowed to remain in Australia.  But the opportunities to rehabilitate were previously given to the applicant and he did not take advantage of them.  He continued to offend, he consumed drugs and he caused injury to others.  Whilst some of his behaviour may have been the result of the influence of the drugs to which he had become addicted, he must ultimately accept responsibility for his behaviour. 

52.     On balance I am satisfied that the serious nature of the applicant's past conduct for reasons expressed earlier heavily outweighs the disadvantages of him being removed from the Australian community.

53.     In all of the circumstances I am satisfied that the decision under review and the visa currently held by the applicant should be cancelled.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  16 June 2008
Date of Decision  20 June 2008
Counsel for the Applicant         Mr J McKenna
Solicitor for the Respondent     Mr A Chand, Clayton Utz