Truong and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 424
•5 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 424
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/261
GENERAL ADMINISTRATIVE DIVISION ) Re QUOC THANG TRUONG Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date5 May 2005
PlaceSydney
Decision The decision under review is affirmed.
R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation – Applicant held Transitional Permanent Visa – substantial criminal record – risk of recidivism high and protection of the Australian community out weighing best interests of the child – no ties to Australian community - decision affirmed
Migration Act 1958 section 501
Ministerial Direction 21
REASONS FOR DECISION
5 May 2005 The Hon R N J Purvis Q.C., Deputy President the application
1. Mr Quoc Thang Truong (“the Applicant”) has applied to the Tribunal for review of a decision made by a delegate for the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 31 January 2005. By such decision the Respondent cancelled the Applicant transitional (permanent) visa pursuant to section 501(2) of the Migration Act 1958 (“the Act”). A consequence of cancellation of the visa is that the Applicant would be liable to be deported to Vietnam.
2. In the statement of reasons given by the Respondent in support of the cancellation decision it was inter alia said (at G2/17):
“…
[73] As a consequence of Mr Truong’s sentences, Mr Truong is deemed to have a substantial criminal record and not pass the character test by virtue of s.501(6)(a) with reference to s501(7)(c) of the Act.
[74] Mr Truong also has a number of convictions other than those listed above, found in his full Criminal History and NSW Record of Convictions.
[75] For the above reasons I have formed the necessary suspicion that Mr Truong does not pass the character test and he is unable to satisfy me that he passes the character test.
Discretion
[76] Having formed the necessary suspicion that Mr Truong does not pass the character test and determined that Mr Truong was unable to satisfy me that he passes the character test I considered whether to exercise my discretion to cancel the visa of Mr Truong…
…
[77] I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Mr Truong’s conduct, the likelihood that such conduct might be repeated and general deterrence.
…
[78] Mr Truong has been convicted of robbery whilst armed and in company and sentenced to a total of 5 years imprisonment. He has also been convicted of drug related crimes. These constitute crimes that I consider to be very serious under paragraph 2.6 of the [Ministers] Direction [No 21].
…
[79] The nature of Mr Truong’s conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.
…
[80] I considered the pattern of Mr Truong’s criminal behaviour. I considered that Mr Truong’s criminal history shows he has a history of re-offending within short intervals.
…
[82] I assessed that there is a continuing risk that Mr Truong might re-offend. I placed great weight on his risk of recidivism.
…
[84] I also gave primary consideration to the expectations of the Australian community. In accordance with the Government’s view that is expressed in the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia.
…
[86] In view of Mr Truong’s pattern of criminal offending and the seriousness of those offences, however, I believe that the Australian community would expect Mr Truong’s visa to be cancelled and for him to be removed from Australia. I gave great weight to this consideration.
[87] I also gave primary consideration to Mr Truong’s daughter Thi, aged 16 years. Thi was in her father’s custody for 2 years until November 1995 when he was arrested. Thi is now currently in the custody of her mother and Mr Truong has regular contact with Thi.
[88] I accepted that Thi would suffer hardship in the event her father’s visa is cancelled…
[89] I gave great weight to this consideration.
…
[94] I accepted that Mr Truong would suffer considerable hardship if his visa were to be cancelled resulting in his removal from Australia.
…
[96] In reaching my decision I concluded that the continuous nature and seriousness of Mr Truong’s crimes, his risk of recidivism, the disruption these crimes have caused others and the expectations of the Australian community outweighed all other considerations above, including the best interests of his daughter.”
the hearing
3. At the hearing of the application the Applicant appeared on his own behalf. The Respondent was represented by Mr Avinesh Chand, solicitor of Clayton Utz Lawyers.
4. The documents required to be lodged with the Tribunal and provided to the Applicant pursuant to section 501G of the Act were admitted into evidence and marked G1 to G15. Other documentary material tendered by the Applicant consisted of his criminal history schedule (Exhibit A) and a handwritten statement (Exhibit B).
5. The Applicant gave oral evidence through an interpreter upon which he was cross-examined.
chronology of relevant events
6. A chronology of significant events relevant to this decision is as follows:
1988, 1 July Applicant first arrives in Australia
1988, 18 October Applicant’s daughter Thi Kieu Oanh Truong born
1993, 13 January Applicant departs Australia for Vietnam
1993, 28 March Applicant returns from Vietnam
1994, 1 September Pursuant to Migration Reform (Transitional Provisions) Regulations 1994 Applicant deemed to hold a transitional (permanent) visa
1997, 16 May Applicant convicted of armed robbery and sentenced to a term of imprisonment of five years with a non-parole period of three years
1998, 1 December Applicant issued with a warning as to further convictions leading to the question of deportation being considered
1999, 18 November Applicant convicted of assault with act of indecency sentenced to six months imprisonment
1999, 30 November New South Wales Parole Board finds Applicant breached parole conditions and orders that he serve the balance of his term of imprisonment
2000, 20 December Applicant convicted of having goods in custody reasonably suspected of being stolen, possessing prohibited drug, escaping from lawful custody, supplying prohibited drug, sentenced in all to 50 months imprisonment
2001, 16 January Parole Board finds Applicant breached parole conditions and to serve balance of term
2002, 21 August Applicant issued with notice of intention to consider cancelling visa
2003, 30 July Applicant convicted of possessing prohibited drug and supply prohibited drug and sentenced to 22 months imprisonment
2003, 9 August Applicant issued with further notice of intention to consider cancelling visa
2005, 31 January Respondent decides to cancel Applicant’s visa pursuant to section 501 (2) of the Act
statutory provisions and direction
7. Section 501 of the Act relevantly provides that:
“SECT 501
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
….
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b)…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
…
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
8. Section 501 (7) provides that:
“Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…”
9. If the Tribunal is satisfied that the Applicant does not pass the character test, then the discretion provided for by section 501(2) of the Act is available to it. In exercising the discretion the Minister’s Direction 21 is to be followed with the Tribunal having regard to the three primary considerations and a number of other considerations referred to in that Direction. The Tribunal is to have regard to the importance and weight placed by the Minister on the primary considerations, they being the protection of the Australian community, the expectations of the Australian community and the best interests of any child. Other considerations are also to be given appropriate weight, any one of which is not to individually out weigh a primary consideration.
criminal history of the Applicant
10. The criminal history report of the Applicant (G6/83) recounts the following relevant breaches by him of the Australian law. The Applicant was first fingerprinted in the year following his arrival in this country.
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
1997, 16 May
armed robbery
sentenced to three years imprisonment
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
imprisonment 50 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
imprisonment for 22 months
factual situation and findings of fact
11. The Applicant was born in Vietnam on 20 August 1954. His parents and eight brothers and sisters still live in that country. He is the third eldest of the children.
12. In about 1986 he left Vietnam on account, he says, of the then communist regime and lived in a refugee camp in Malaysia for a period of approximately 18 months. It was in the camp that he met the lady who later became his wife. A daughter was conceived.
13. The Applicant entered Australia on 1 July 1988 under the Vietnamese Refugee program followed shortly after by his wife and baby daughter. They lived together for only a few years after their arrival in this country. On separating the Applicant cared for the daughter until he was sentenced to imprisonment when the mother assumed responsibility for her. Even though he has served lengthy periods in gaol, the Applicant has maintained contact with his daughter, albeit more recently by telephone.
14. It is to be noted that there was not any evidence before the Tribunal from the Applicant’s daughter who is now 16 years of age.
15. As is apparent from his criminal history, the Applicant assumed an anti-social attitude shortly after his arrival in Australia. He became involved in drug-related offences and was a user. He is even presently, whilst in detention, on an anti-toxification program. Either apart from, or associated with the drug usage, the Applicant was involved in the committal of acts of violence and break and enter. In the course of delivering his reasons on sentence in May 1997 the learned District Court Judge inter alia said (at G14/117):
“…You [the Applicant] and two other male persons invaded the residence of the lady and removed some cash apparently $400 and jewellery. You tied up Thanh Thanh Trinh and her female relation who was Thuy Giang, and you appear to have been the person who held a gun to the head of Thanh Thanh Trinh to persuade her to indicate where money or other property could be found.
…
…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…
…
… It would seem that you wished to supplement your unemployment benefit payments. Taking all these features into account and the fact that this is such a serious matter, I sentence you to penal servitude for a period of five years consisting of a minimum term of three years commencing on 27 November 1995…
I consider that there are special circumstances because of the fact that you were previously engaged in drug distribution, if not drug addiction, and the necessity for you to have a protracted period of supervision during which time I would hope and expect that the probation service and perhaps members of your own community would make efforts to try to set you up in society. That is, if you remain in Australia of course. It may be that the authorities will deport you because you are not, so I am informed, an Australian citizen…”
16. It is relevant to note that on the two occasions when the Applicant was released on parole, he again offended and had his parole revoked. He has also been warned that if he again offended, the Minister might well consider ordering his deportation. He did in fact again offend.
17. During the time the Applicant has resided in Australia he has engaged in some restaurant work. Otherwise whilst not in prison he has been dependent on Social Security and earnings from his criminal activities.
18. Apart from his ex-wife, who has now re-married, and his daughter, the Applicant does not have any close relatives in Australia. If he is deported to Vietnam he will not live with his parents. He is concerned that if they should become aware of his drug-related activities “it would kill them”. They are both in their 80’s. The Applicant has recently written to his youngest sister, who resides in Saigon (Ho-Chi-Minh-City?) with her husband and two children. He does not at this time know where he would live in Vietnam or how he would support himself. But if released into the Australian community he might well be in the same position; no home and no employment.
19. The Applicant returned to Vietnam in 1993 and remained there for a few months. He did not experience any problems or disassociation from the Vietnamese culture whilst he was there. He sponsored the migration to Australia of a lady whom, he says, he intended to marry. However, they remained together for only a short period, when she left and is now living in Queensland.
20. The Applicant says that he will not re-offend and asks “for one last opportunity”.
character
21. On the basis alone of the convictions recorded against him I am satisfied that the Applicant is a person not of good character.
22. Further, he has consistently since first arriving in Australia acted regardless of the law and has shown no inclination to comply with the responsibilities of a lawful resident of this country. He arrived under a refugee program but has abused the hospitality that was extended to him. He has acted regardless of the welfare of those who might have looked to him for support. He has made a minimal contribution to the Australian society and there is not any evidence of his seeking to integrate into it.
exercise of discretion and decision
23. Being satisfied that the Applicant does not pass the character test, the Tribunal is to consider the discretionary factors available to it. I am to have regard to the three primary considerations and a number of other considerations already identified in these reasons.
24. I am satisfied that the criminal conduct of the Applicant has been of a very serious nature. I note that paragraph 2.6 (a) of the Minister’s Direction makes reference to the production, importation, distribution, trafficking (include possession for this purpose), commercial dealing or selling of illicit drugs is or are to be regarded as very serious offences. Paragraph 2.6 (b) of the Minister’s Direction stipulates that amongst other involvements, organised criminal activity resulting in conviction in Australia is to be regarded as a very serious offence, armed robbery also be regard of a like nature.
25. I am satisfied on the basis of the evidence before the Tribunal, including the observations made by the learned District Court Judge, is such as to establish that the criminal conduct of the Applicant was of a very serious nature.
26. I am mindful of the fact that on two occasions the Applicant again offended whilst on parole. I am satisfied, having in mind his convictions and past behaviour, that there is a likelihood that the Applicant may re-offend. I am satisfied that the risk of recidivism is quite high, more so since having been warned of the risk of cancellation of his visa he nevertheless re-offended. The fact alone of the Applicant re-offending whilst on parole suggests as was submitted on behalf of the Respondent “that there is a significant likelihood that he will continue to re-offend in the future if his visa is not cancelled”. Indeed on the evidence before the Tribunal it is likely that the Applicant committed the offence for which he was convicted in July 2003 of possessing and supplying prohibited drugs after he had received the notice of intention to consider visa cancellation.
27. The conduct engaged in by the Applicant was extensive and continuous. There is no doubt that cancellation of the visa should send a message to the Australian community including the Vietnamese community that conduct in breach of the law may well attract visa cancellation.
28. The Australian community expects a resident to obey Australian law. This expectation was broken by the Applicant on a number of occasions by his serious criminal conduct. If the Australian community was aware of the full nature of the conduct of the Applicant I am satisfied it would on this ground expect a visa to be cancelled.
29. The Tribunal is also to give primary consideration to the best interests of the Applicant’s daughter. As I have already mentioned, there is not any evidence before the Tribunal from the daughter herself. There is not any correspondence in evidence from the daughter to the Respondent. The Applicant himself says that he maintains contact with her, more recently by telephone. He says that she is his only relative in Australia and that he wishes to maintain this contact. His daughter is now 16 years of age living with her mother and her mother’s new husband. There is no evidence as to the relationship that might exist between the Applicant and the stepfather.
30. Whilst it is reasonable for the Tribunal to conclude that the daughter will suffer some hardship if her father is required to leave Australia, the extend or nature of it is not before the Tribunal.
31. The contact had by the Applicant with the daughter has not been regular for a significant period of time this on account of his imprisonment and the fact that she has been cared for by her mother. There is no evidence before the Tribunal as to the Applicant providing any support for the daughter. Accordingly, the Tribunal does not attach significant weight to the hardship that might be experienced by the daughter.
32. As already indicated the Applicant’s brothers and sisters all reside in Vietnam as do his parents. It is only his daughter and his ex-wife who as members of his immediate family reside in Australia. There is no evidence before the Tribunal that cancellation of the visa will result in disruption to the Applicant’s family, business or other parts of the Australian community. There is no evidence of the Applicant having a meaningful connection with any part of the Australian community.
33. There is not any evidence before the Tribunal of the Applicant having recently engaged in good conduct or of his rehabilitation. The only relevant evidence in this regard is his past history when on re-entering the community he has again offended.
34. It is noted that the visa is described as a transitional (permanent) visa and that the Applicant has been put on notice of the possibility of visa cancellation following his conviction in 1997 and of more recent date.
35. An assessment was made on behalf of the Respondent as to whether Australia had international obligations under the Refugees’ Convention, the Convention against Torture, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which were likely to be breached if the Applicant’s visa was cancelled and he was removed to Vietnam. On the basis of the evidence before the Tribunal I am satisfied that the Applicant is not a person to whom Australia has protection obligations under the Refugees’ Convention and that country information does not indicate that returning the Applicant to Vietnam may result in adverse attention being directed towards him. It is noted that he might be placed under surveillance by the Vietnamese authorities for a period to observe if he becomes involved in illegal drug dealing in Vietnam. Further, there is no indication that the Applicant requires medical treatment for any illness or condition unassociated with his use of heroin.
36. The circumstances of the Applicant’s entry into Australia do not give rise to any significant or compassionate considerations.
37. On the basis of the matters set forth earlier in these reasons I am satisfied that the primary considerations relevant to the protection of the Australian community and the expectations of that community are in favour of visa cancellation. The hardship that will be experienced by the daughter on the evidence before the Tribunal is not sufficient to outweigh the other primary considerations. Nor do the other non primary considerations raise any significant issues in favour of non cancellation.
38. Accordingly, for the reasons herein before set forth I am satisfied that the primary considerations favouring visa cancellation outweigh the other considerations. Accordingly, the decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: A. Garcia .....................................................................................
Associate
Date/s of Hearing 27 April 2005
Date of Decision 5 May 2005
Applicant self-represented
Solicitor for the Respondent Mr A Chand
0
0
0