Truong and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 100
•3 February 2005
CATCHWORDS – IMMIGRATION – visa – cancellation – character test – failure of character test – whether discretion should be exercised to cancel visa – expectation of Australian community tempered by circumstances – best interests of children –decision set aside.
Drugs, Poisons and Controlled Substances Act 1981 (Vic) s. 71
Migration Act 1958 ss. 31(1), 31(2), 31(3), 499, 501(2), 501(6), 501(7), 501(12), 501G
Migration Regulations 1994 Schedule 2
Aksu v Minister for Immigration and Multicultural Afffairs (2001) 65 ALD 667
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gas v The Queen (2004) 78 ALJR 786; 206 ALR 116
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
R v Duong [1998] 4 VR 68; 99 A Crim R 218 (CA)
R v Giretti (1986) 24 A Crim R 112
R v Howells [1999] 1 WLR 307; 1 All ER 50 (CA)
R v Isaacs (1996) 41 NSWLR 374; (1997) 90 A Crim R 587 (CCA)
R v Jabaltjari (1989) 64 NTR 1
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
R v Osip (2000) 2 VR 595
R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
R v Rowe (1991) 52 A Crim R 196
Simpson v The Queen (1998) 194 CLR 228; 155 ALR 571; 103 A Crim R 19
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Mitchell J, The Web of Criminal Law, 1975 Boyer Lectures, ABC, Sydney at 49
DECISION AND REASONS FOR DECISION [2005] AATA 100
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/1283
GENERAL ADMINISTRATIVE DIVISION )
Re HUNG NGOC TRUONG
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 3 February 2005
Place: Melbourne
Decision:The Tribunal:
1.sets aside the decision of the respondent dated 23 September 2004; and
2.substitutes a decision that the applicant’s Class BB subclass 155 visa not be cancelled on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.
S A FORGIE
Deputy President
REASONS FOR DECISION
The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”), cancelled the Class BB subclass 155 (“visa”) held by the applicant, Mr Hung Ngoc Truong. She did so on 23 September 2004 after concluding that Mr Truong does not pass the character test under s. 501(6) of the Migration Act 1958 (“Act”). I have also decided that Mr Truong does not pass the character test but have decided that the discretion inherent in s. 501(2) should be exercised in his favour. Consequently, I have set aside the Minister’s decision and substituted a decision that Mr Truong’s visa not be cancelled on the basis that he has failed the character test pursuant to s. 501 of the Act.
At the hearing, Mr Truong was represented by Mr Hughan of counsel and the Minister was represented by his solicitor, Mr Fell. I had regard to the G documents lodged pursuant to s. 501G of the Act (“G documents”) as well as to written statements by Mr Truong, Ms Nhung Kim (Stacey) Tran and Mr George Frank Debrincat, letters written by Mr Anthony Ferguson dated 19 January 2005, Ms Lena Tran dated 16 January 2005 and Mr James Dredge, CSEPP Coordinator, Djerriwarrh Services St Albans dated 18 January 2005, a Special Report by Ms Cindy Ceravolo, Sunshine Community Corrections Officer, dated 11 November 2004, a Parole Assessment Report by Ms Julie Bridgman, Sunshine Community Corrections Officer, dated 5 May 2004 and a Parole Order dated 1 June 2004.
ISSUES
As Mr Truong does not pass the character test set out in s. 501(6) of the Act because he has a substantial criminal record, the only issue in this case is whether the discretion in s. 501(2) should be exercised to cancel his visa.
BACKGROUND
In this section of my reasons, I set out the findings I have made regarding the facts forming the background to the issue that I must decide. I have made those findings based on the evidence to which I have referred above and in light of the lack of controversy between the parties about them.
Mr Truong’s family and his life before coming to Australia
Mr Truong was born on 12 April 1976 in the village of Hue, which is located between Hanoi and Saigon. His father, Mr Truong Xung, is a fisherman who is now 54 years of age. His mother, Mrs Tran Thi Bong, is approximately 53 years of age. She maintains their home. Mr Tran has five brothers and five sisters. Three of his brothers and his five sisters are younger than he. They live in Vietnam. Two of his brothers are older than he. They both live in Australia. Nguyen Truong is 31 years of age and Bao Truong is 29. Both are working.
Mr Truong attended school in Vietnam until he was about 9 years old and in Grade 3 or 4. He then left Vietnam with his two older brothers and his uncle, his uncle’s wife and their two children. Mr Truong was unaware that they were leaving until they did. He was woken by his uncle when they left. When he next awoke, he was in the middle of the ocean in a boat with some 20 people. He wanted to swim home but his uncle told him that it was too far. When he asked his uncle why they had left, his uncle told him that he, his uncle, would be put in prison if he returned. They had no choice but it was his uncle who had the problem.
The extended family stayed in the boat for about a month and then arrived in Hong Kong where they stayed in refugee camps for three or four years. Little freedom was permitted in the first refugee camp, Chinawai, but Mr Truong was permitted to go to school during the day when the moved to a second refugee camp some eighteen months later. Mr Truong found the schooling to be less advanced than that he had received in Vietnam.
Life in Australia with his family
In 1990, the extended family of seven and a baby girl born in Hong Kong, migrated to Australia. They were sponsored by a relative of Mr Truong’s uncle, who lived in Perth. The family stayed in Perth for six months where Mr Truong began to learn English. They then moved to Melbourne. Mr Truong’s uncle and aunt had a fourth child. Mr Truong resumed his schooling and began in Year 8.
Meeting Ms Tran and forming a family
Mr Truong met Ms Tran in 1999. Ms Tran then had a son, Dylan, who had been born on 1 July 1998. They entered a relationship and a daughter, Wendy, was born on 1 July 2000. Both Dylan and Wendy have always referred to Mr Truong as “Dad” or “Daddy” and Dylan does not know that Mr Truong is not his biological father. Mr Truong regards them as his own children. Dylan completed his preparatory year in 2004 and will go into Grade 1 this year. Wendy went to kindergarten last year and will do so again in 2005.
Mr Truong’s convictions
Mr Truong has been convicted of the following offences:
| Court | Date | Charge (counts) | Result |
| Sunshine Magistrates’ Court | 23 May 1996 | Traffick heroin (3) Traffick heroin | 4 months on each charge concurrent. Sentence suspended for 2 years under s. 27, Sentencing Act. 25 days concurrent. Sentence suspended for 2 years under s. 27, Sentencing Act. Drugs forfeited. |
| Ringwood Magistrates’ Court | 31 July 1997 | Fail to answer bail Use heroin Breach re 23 May 1996 (traffick heroin) (2) | Convicted and fined $300 Convicted and fined $100 Breach of suspended sentence. Order confirmed. 4 months on each charge concurrent. |
| Dandenong Magistrates’ Court | 22 September 1997 | Possess heroin Use heroin | 7 days on each charge concurrent. |
| Dandenong Magistrates’ Court | 8 April 1999 | Possess heroin Use heroin | With convictions, fined an aggregate of $300. |
| Dandenong Magistrates’ Court | 30 June 2000 | Traffick heroin Use heroin (2) Possess money – being proceeds of crime Possess heroin | Aggregate 5 months’ imprisonment. To be served by way of Intensive Correction Order. The conditions of the order are: The Defendant is required to attend at the Sunshine Community Corrections Centre by 14/07/2000 by 04.00PM. All core conditions under s. 20 of the Sentencing Act 1981 apply. Order that the respondent undergo a forensic procedure for the taking of an intimate sample from any part of his body pursuant to s. 464ZF(3) of the Crimes Act 1958 (as amended). Pursuant to s. 464ZF(9)(a) of the Crimes Act 1958 (as amended), the respondent is informed that a member of the police may use reasonable force to enable the procedure to be conducted. Reasons: The above-named person has been found guilty by the Magistrates’ Court of a forensic sample offence. Aggregate 5 months’ imprisonment. To be served by way of an Intensive Correction Order. The conditions of the order are: The Defendant is required to attend at the Sunshine Community Corrections Centre by 14/07/2000 by 04.00PM. All core conditions under s. 20 of the Sentencing Act 1981 apply. Aggregate 5 months’ imprisonment. To be served by way of an Intensive Corrections Order. The conditions of the order are: The Defendant is required to attend at the Sunshine Community Corrections Centre by 14/07/2000 by 04.00PM. All core conditions under s. 20 of the Sentencing Act 1981 apply. Forfeiture order made by consent. Aggregate 5 months’ imprisonment. To be served by way of an Intensive Corrections Order. The conditions of the order are: The Defendant is required to attend at the Sunshine Community Corrections Centre by 14/07/2000 by 04.00PM. All core conditions under s. 20 of the Sentencing Act 1981 apply. Forfeiture order made by consent. |
| Melbourne Magistrates’ Court | 11 August 2001 | Failure to comply with I.C.O. (traffick heroin, use heroin, possess money – being proceeds of crime, possess heroin) (2) | Breach proven. Breach of Intensive Correction Order. Order cancelled. To serve unexpired portion of 122 days. |
| Melbourne Magistrates’ Court | 13 November 2001 | Possess heroin Use heroin Possess regulated weapon (2) | Aggregate 14 days’ imprisonment. Aggregate 14 days’ imprisonment. Aggregate 14 days’ imprisonment. |
| Melbourne County Court | 26 June 2002 | Traffick heroin | 4 years, non-parole period of 3 years. Declare a period of 376 days have already been served by way of pre-sentence detention. |
Ms Tran’s convictions
Ms Tran was sentenced by Judge Morrow of the County Court in May 2002 after she pleaded guilty to a charge of trafficking a drug of dependency (heroin). He sentenced her to 18 months’ imprisonment but suspended 12 months of that sentence for a period of three years from 17 May 2002.
Care of Wendy while Ms Tran was in prison
Mr Debrincat and his de facto wife, Julie Muscat, have been together for 18 years. They first met Ms Tran and Wendy through Ms Muscat’s cousin, who cared for Wendy. They then began to care for Wendy from time to time. When Ms Tran was in prison, they cared for her permanently through a formal arrangement with the Department of Human Services. Since Ms Tran’s release from prison, Wendy has continued to stay with Mr Debrincat and Ms Muscat from time to time. They have also cared for Dylan.
Mr Truong’s relationship with Ms Tran
Mr Truong and Ms Tran maintained their relationship until approximately half way through 2004. She is now in a relationship with Mr Huy Lam, who is a plasterer. Through Ms Tran, Mr Truong and Mr Lam met and have become good friends.
Mr Tran’s release on parole
Mr Truong was released on parole on 12 June 2004. As a condition of his release, he was required to undergo assessment and treatment for alcohol or drug addiction and that he submit to medical, psychological or psychiatric assessment and treatment as directed by the Manager of Sunshine Community Correctional Services (“Sunshine CCS”). His parole is due to expire on 11 June 2005. He was placed on the buprenorphine programme for a few weeks but then stopped receiving it.
Among the other conditions of his parole, Mr Truong was required between his release and 11 September 2004 to report at least twice a week to his supervising community corrections officer and either be employed or undertake an approved educational or training programme or, if doing neither, undertake unpaid community work as directed by the Regional Manager of Sunshine CCS.
THE EVIDENCE
Mr Truong’s early life in Australia
Mr Truong said that he lived with his uncle and aunt in Melbourne but his two brothers did not. He usually saw them at school rather than at home. He continued to live at home because he was too young to move away but he left them after they had been in Melbourne approximately a year. He left because life at home was not really good for him. His brothers had found the same and he referred to an incident where he and one of his brothers had been given 50 cents to cover the bus fare to travel to school. It did not and they had to walk three hours to get there. That had occurred in Perth and his brothers left as soon as they moved to Melbourne.
Mr Truong also said that he left home because he felt that his uncle and aunt treated him and his two brothers differently from their own children. His uncle treated him as a worker. He was required to look after their children, cook and do everything in the house. Sometimes, he even did the washing. He had done the same in Hong Kong when he cared for the two elder children who were aged 2 or 3 and six months when they got there. Mr Truong said that he had got to the stage where he could not handle it anymore. At the time he left, he was still attending school and continued to do so until 1995. He was then half way through Year 11 and 19 years of age.
At first, Mr Truong did not have any money and slept on the streets and at railway stations. He would stay with friends. This lasted for about six months and he continued to attend school. He then stayed with another friend for a couple of months and then with Mr Ferguson for one or two years. Mr Truong then moved to the home that his brother, Nguyen, shared with a friend and that had been arranged by Mr Ferguson. Mr said that his two brothers had given him a fortnightly allowance to live on during the years after he left home. He received no money from the government at that time but later received Austudy. Mr Troung has worked in a few itinerant jobs including fruit picking.
When he first left home, Mr Truong did not begin taking drugs immediately. When he had left school, he began using marijuana and then used heroin as well as marijuana. He stopped using heroin and went “cold turkey” for a while but never obtained professional help. After a time, he started again and that pattern was repeated with his periods of abstinence lasting from six to twelve months at a time. The pattern was that he would stop but would then meet up with old friends and start using again. Mr Truong stopped his drug use in this way on four or five occasions.
Mr Truong said that he also began trafficking in drugs on a small scale. He was trafficking about a gramme at a time and would make about $30 or $40 to buy drugs for himself. As a result, he went to court on a number of occasions and always pleaded guilty.
Mr Ferguson is a former teacher at the Footscray Secondary College where he was Head of the Migrant Centre/English as a Second Language Department from 1979 until 1994. He has known Mr Truong and his two older brothers since they were enrolled in that school on their arrival in Melbourne. Mr Ferguson has worked with each of the brothers to support them in their education-related welfare needs over several years. While they were at the school, Mr Ferguson visited the boys and their aunt and uncle. At times, he was invited to celebrations with the family. Mr Ferguson wrote at length to the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) on 18 May 2004. He wrote of his early contact with Mr Truong:
“From their early weeks in Melbourne onwards, the brothers were constantly under threat of eviction or actually evicted from ‘home’ by their uncle in whose care they were living. This was a pattern that was repeated for years. I had Truong Ngoc Hung staying in my house several time in the early 1990s when he was a school student, sometimes for a night or two along with a brother and sometimes for several weeks until a member of his extended family came to take him back. The eldest brother has also stayed at my house for several weeks or months at a time over the years.
Whenever Truong Ngoc Hung stayed at my house, he was calm and helpful. He voluntarily cooked for the two of us. He would spend his evenings doing his homework. I never had any need to discipline him and there was never any conflict. He has never lied to me. He still addresses me as ‘sir’ though I have never required it and introduces me to others as his high school teacher. His attitude towards me is influenced by the Vietnamese concept that the debt and respect owed to one’s teacher is lifelong.” (G documents at G8)
As for Mr Truong’s schooling, Mr Ferguson wrote:
“… After some months in Perth, they all accompanied their sponsor when he moved to Melbourne, but the relationship with him broke down shortly afterwards. Truong Ngoc Hung had attended an on-arrival English Language Centre in Perth, but was enrolled in the mainstream school at Footscray City Secondary College before he had been able to access his full on-arrival language centre course entitlement. He found the transition difficult and was frustrated by the difficulties at the new school. We were able to get him accepted for a further semester at Collingwood English Language School where he settled in well and resumed learning. On his return to Footscray Secondary College, he was able to adjust better and make progress in learning.” (G documents at G8)
When Mr Ferguson visited the family, there were four young children born to Mr Truong’s uncle and aunt as well as Mr Truong and his two brothers. He noted that:
“… The uncle was usually unemployed and was not becoming proficient in English. I observed him drinking heavily on most occasions. I learnt that he had been tortured in Vietnam and the brothers believed he was brain-damaged as a result. The family often moved house and at one period, the aunt and all the children seemed to be sharing a women’s refuge house with other women and their children.
I judged that the conflict between the three brothers and their uncle was related to the stress the family was undergoing in the early years of settlement, their poverty and general lack of resources and the uncle’s trauma – and alcohol – affected behaviour. In my twenty-odd years of experience with Vietnamese students and their families, I have often noted that where a refugee student is in the care of an uncle, aunt, cousin or other relative who has a spouse and children of their own, the student is under considerable pressure to become independent, contribute to household finances or leave when the sponsoring relative is focused on providing for their nuclear family as they struggle to establish themselves in Australia. The teenage student will experience this pressure most acutely when they are trying to get an education and develop employment skills while still in the early stages of acquiring English and an understanding of Australian society and culture and going through the difficulties of adolescence. It is these years they most need strong and consistent family support, but their kin in Australia are least able to extend it consistently.” (G documents at G8)
Despite the difficulties that Mr Truong experienced, Mr Ferguson wrote, he had never offered a word of criticism against his uncle. This was consistent with Mr Truong’s evidence.
Mr Truong’s older brothers were unable to offer him any support although the eldest did try but his efforts were misdirected. Ultimately, both of Mr Truong’s older brothers got into trouble and have served custodial sentences at various times. Mr Ferguson observed that Mr Truong had not had contact with his brothers since his release from Fulham.
The circumstances of Mr Truong’s most recent offence
Mr Truong pleaded guilty to one count of trafficking in a drug of dependence. The maximum sentence for the offence is 15 years’ imprisonment. Judge Morrow sentenced Mr Truong on 26 June 2002 on the basis of a summary based on a statement made by his co-offender, Ms Tran. Morrow J had earlier sentenced Ms Tran on a similar count and he summarised the circumstances as follows:
“ This count covers the period between 14 December 2000 and 31 January 2001. It has been agreed that I should sentence you on the basis of a summary based on a statement made by your co-offender and de facto wife, Nhung Kim Tran, on 13 May of this year when she was before me in respect of a similar count.
…
Due to your long-standing addiction, you had come into contact with a drug dealer known as ‘Uncle Ba’. Some time in 2000 Uncle Ba told you that a lot of money could be made if you were prepared to sell heroin for him. You were attracted to this idea because of your long-standing addiction to heroin and you and Tran were struggling financially, so the two of you agreed that it was a good idea to take up Uncle Bah’s offer. Thereafter the two of you entered into a partnership where you obtained heroin from Uncle Bah and sold it on to others. The enterprise became a sophisticated one, involving subagents who used cars to deliver the heroin to customers, and it got to the stage where it attracted the attention of the police.
Customers would ring either you or Tran on your mobile phone and then one of you would ring Uncle Bah and place an order for the heroin that was required by your customers. As Tran said in her statement, you were happy once this trafficking started because you did not have to use her money in order to get heroin to satisfy your addiction. Given that Tran’s English was better than yours, she did most of the talking on the phone with the customers but, as she said, if she took an order she would always talk to you about it and then one of you would ring Uncle Bah and arrange to get heroin from him. She said that once you obtained the heroin from Uncle Bah, one of you would go out and meet the person who ordered it and make the sale. As Tran said, ‘A couple of times I had to stay home and look after the kids so Hung went out and did it, sold to people.’ She went on to say, ‘We were sort of like partners and we both knew how much we were selling and buying.’
Between 4 January and 31 January 2001, telephone intercepts showed that both of you were actively involved in the business of selling heroin, or attempting to sell it, for various prices, usually in the hundreds rather than the thousands of dollars, and although it is impossible to say how many of these phone calls actually resulted in sales, they nevertheless indicate that your business was very active.
Of those calls only four were made or taken by you. One involves you speaking to Uncle Bah, obviously to order heroin, and the other three were to customers wherein you indicated that you were busy and that you were able to quote prices for your merchandise.
Your trafficking culminated in the sale of an ounce of heroin to an undercover police officer on 14 December 2000. On that occasion, you and Tran met the undercover officer at McDonald’s in Altona North and, in conversation with the police officer, Tran informed her that she, Tran, was the boss as far as you and her were concerned, and it is fair to say that she conducted the major part of the conversation at that time.
During the conversation, however, you told the police officer that you would obtain the heroin from another party, who you referred to them as your boss, and this person would set the price for the heroin. You took an active part in explaining to the police officer the complicated system involving the hiring of a vehicle for the delivery of heroin to country locations, and you made it clear that you had access to large amounts of heroin from your boss.
After this conversation, Tran accompanied the police officer in her car to a nearby location, where the heroin was delivered to the police officer’s vehicle by an Asian male, unknown, who she handed over $4,400 to in return for the heroin. This heroin was found to weigh 27/7 grams at 40 percent pure heroin.
You and Tran were arrested on 31 January 2001 and you denied your involvement in these activities. You told police that you had stopped dealing a long time ago and that the reason you had sold heroin then was to get money to sent to your family in Vietnam and to support your own addiction. At the time that Tran was sentenced on 17 May of this year, you were still contending that you were not guilty of this offence and it was only after she was dealt with that you changed your plea, although I understand that at all times you were prepared to admit your involvement in the single transaction that occurred with the undercover police officer on 14 December 2000.” (G documents at G7)
The reasons for Mr Truong’s committing offences
With the exception of the two offences of possession of regulated weapons in November 2001, Mr Truong said, his offending arises from his being addicted to heroin. He has used heroin, had it in his possession and sold it to others because he needed the money to buy drugs for himself. That was the reason for all of his trafficking.
Both Mr Truong and Ms Tran said that she was, and is, not a drug user. She was, however, involved in trafficking it. Mr Truong said that she became involved to help him to get drugs for himself. Ms Tran confirmed that was the case. She did not think that he trafficked to make any money for himself. From her point of view, she had just wanted to help him. She did not use anyone else to help in the deliveries. She never asked anyone to take heroin. Friends who visited already had the habit. When she first became involved with heroin, she had not thought it a serious matter or, at least, was not sure about it. She now thinks that it is a “a big deal” and very serious.
Ms Tran said that Mr Truong stopped using heroin from time to time. When he did, they stopped selling it and only started again when he started taking it again.
When he was interviewed by telephone by an officer of the Department on 7 May 2004 (“interview”), Mr Truong had no comment when asked to comment on the seriousness of his offences. Subsequently, he wrote to the Department that he had not understood the question and continued:
“ I do understand that drug trafficking is a very serious crime and that it does a lots of damage to Australian society. I understand that trafficking leads to often people using and mine people committing crimes because they are affected by drugs as because they need money to pay for drugs so there are more crimes like burglary and assault and more people dying, when I think about it I understand that it means people unnot work and the government being to spend more money for police, courts, hospital, ambulances, and social security it bad for families and children.
I helped organise festival programs at the QUANG-MINH Temple in Braybrook. I have also helped with fund raising and other activities of the congregation.” (G documents at G6)
When asked in cross-examination whether he considered drug trafficking to be a serious offence, Mr Truong answered “yes” after a long silence.
Mr Truong said that he had never told anyone that Ms Tran had used drugs. She had become involved in trafficking to help him support himself with drugs. When asked in cross-examination whether he had used anyone else to help him traffic drugs other than Ms Tran, he replied that he could not remember after another long silence but later said that only he and Ms Tran were involved. He subsequently said that there were other people who helped him deliver it but he did not give them any money for it. He would do favours for them and they would do favours in return. Mr Truong would talk to Uncle Ba and obtain the heroin before the deliveries. He never hired a motor vehicle and never sold heroin to people in the country. Mr Truong did not know whether anyone else ever hired a car.
In his letter to the Department dated 18 May 2004, Mr Ferguson explained that he had:
“… good reason to think that the ‘no comment’ response to Point 4 in his telephone interview was probably due to the abstract wording of the question in the transcript. Although Truong Ngoc Hung is fairly fluent in English at a conversational and personal level, he has not yet developed a thorough, or sophisticated native-speaker proficiency in understanding and expressing more abstractly-worded concepts in English, (This is a common characteristic of many English language learners who have been in Australia for some years and who have had little schooling in their first language.)” (G documents at G8)
Mr Ferguson saw Mr Truong’s offences as coming about in this way:
“When he was forced to leave his family at the age of 19 and later, Mr Truong Ngoc Hung, lived on the streets or in crash pads with other young Vietnamese who were unattached or detached from their families. They introduced him to heroin and the heroin he trafficked was to support himself and his habit. He was unable to access ongoing support from Centrelink or a Newstart Allowance because he did not have a fixed address. He was given to understand that when he was staying with his girlfriend in her Ministry of Housing unit, he could not use her address. He says his use of heroin was intermittent rather than continuous. It was this comment that enabled me to confirm that his drug use and trafficking was associated with his periods of homelessness and destitution.” (G documents at G8)
The rationale of Judge Morrow’s sentence
Morrow J summarised Mr Troung’s family background then moved to his previous convictions and the reasons for imposing his sentence as follows:
“… I am told that by age 17 you began using drugs and quickly became addicted to heroin and have been addicted ever since. You have dealt in drugs to support your own addiction, but had only spent 7 days in custody as a result of these activities by September of 1997.
It is clear that by the time you met Tran you had moved from fairly low level street dealing to that of a mid level retailer involved in a fairly sophisticated drug operation. You failed to take opportunity [sic] of leniency that has been extended to you in the Magistrates’ Court and it is obvious that specific deterrence must play a significant part in any sentence imposed on you. General deterrence must also be reflected in any sentence imposed so that those who are tempted to move up the chain of drug dealing will need to think twice.
It has been submitted to me that on your behalf that you should be dealt with in a similar way to Tran, given that she played at least as large a role as you in this trafficking business. As you now know, I sentenced Tran to 18 months’ imprisonment and suspended 12 months of such sentence for a period of three years from 17 May of this year. Your should understand that I cannot pass a similar sentence on you because, unlike her, you have prior convictions for trafficking, you are some five years older than her and, unlike her, you did not co-operate with the police. Indeed, it was only after Tran made a statement to the police and offered to give evidence against you that you decided to plead guilty to this offence. I also cannot overlook the fact that it was you who involved Tran in this nefarious trade, the principal aim of which was to help supply your craving for heroin and provide some financial support for the family because you had been taking Tran’s money to support your addiction. However, this is not to say that I have no regard to Tran’s sentence when dealing with you.
In sentencing you, I take into account your remorse as indicated in your guilty plea, albeit that it was made at a late stage of the proceedings, and by doing so I accept that you have saved the community the considerable expense that would otherwise have resulted from a trial, and it has also resulted in a considerable saving of court time.
Given your background, rehabilitation will be difficult, although I am told that whilst you have been in prison you have not used drugs. Furthermore, I take into account that the time that you have spent in pre-trial detention, namely, 376 days, does not include a period of 122 days that you were ordered to serve for breaching the intensive corrections order imposed by the Magistrates’ Court on 30 June 2000.
…” (G documents at G7)
Mr Truong’s behaviour in prison
Ms Janice Wilson, a Case Manager with The GEO Group Australia Pty Ltd at Fulham Correctional Centre (“Fulham”), prepared a memorandum regarding Mr Truong’s behaviour in prison. She noted that he had “… worked his way through this sentence with a number of minor incidents” (G documents at G9). His conduct since being in the Cottages had been acceptable, he had been employed on the external grounds at Fulham and had received good reports. At the time she wrote the report in March 2004, his only visitor had been Tran Anh Tuyet in September 2003. She could not comment on his risk of recidivism.
Apart from the drug tests to which I refer below ([49]), Ms Wilson listed the following incidents:
| Date | Incident | Prison |
| 13 May 1996 | Act contrary | D. Wing |
| 7 October 1997 | Assault prisoner | Fulham |
| 29 December 1997 | Assault prisoner | Fulham |
| 29 December 1997 | Assault prisoner | Fulham |
| 29 December 1997 | Assault prisoner | Fulham |
| 29 December 1997 | Assault prisoner | Fulham |
| 5 June 2001 | Assault prisoner | Port Phillip |
| 18 January 2002 | Assault prisoner | Port Phillip |
| 27 April 2002 | Assault prisoner hospital | Port Phillip |
| 14 June 2002 | Good Ord Not No | Port Phillip |
| 18 January 2002 | Assault prisoner | Port Phillip |
| 27 April 2002 | Assault prisoner hospital | Port Phillip |
| 14 June 2002 | Good Ord Not No | Port Phillip |
| 19 May 2003 | Good Ord Not No | Fulham |
| 11 February 2004 | Assault prisoner | Fulham |
On 13 May 2004, Mr John Cassidy, a Correctional Officer at Fulham, wrote:
“ Truong has worked on External Ground for approximately seven months, and in that time has been a very good worker at all times.
Truong’s duties include maintaining the External Grounds gardens, and is presently working in the Industries Timber Shed. His duties there include dipping and packaging timber products produced by the Correctional Centre.
Training conducts all duties required of him with minimal supervision.” (G documents, G9)
Courses completed by Mr Truong in prison
Mr Truong has completed a fifteen week intensive Drug Treatment Program conducted in ERICA, the Drug Treatment Unit at Fulham extending from 10 February 2003 to 22 May 2003. It comprised five stages addressing various aspects of setting the scene, identifying the issues, managing the issues, mood management and relapse prevention. Those modules were completed in sessions totalling 125 hours.
In addition to that course, Mr Truong has completed a Basic First Aid Course and courses in Sewing Machine Operation I and Quality Awareness.
Mr Truong’s steps towards addressing his drug addiction
Mr Truong thought that the fifteen week intensive Drug Treatment Program conducted in ERICA, the Drug Treatment Unit at Fulham had taught him how to use drugs, how to stop using drugs and what to do if people overdosed on them. The programme also assisted him in understanding how to avoid using them. He has stopped taking drugs. Although he misses his old friends, he has stopped seeing them and he has now got to the stage where he does not want to see them. If he sees them in the street, he just says “hello” and walks off. He now spends time with “Kenny”, who is not involved in drugs as well as Dylan and Wendy.
When he was interviewed by the Department by telephone, Mr Troung was still in prison. He told the officer from the Department that he had returned positive drug tests to cannabis because he was stressed. All the rest were clear, he said, and he is not now on a rehabilitation programme. He felt that prison had helped him to think clearly and to be strong. At that stage, he was thinking a lot about getting out of prison, about his future, looking after his daughter and being a good person. He also thought about not doing any crime and not returning to prison. If he had any problems, he told the officer, he would go and see his counsellor. He would keep in contact with his former high school teacher, Mr Ferguson, and would get support from his parole officer.
The Parole Assessment Report prepared on 5 May 2004 records Mr Truong’s belief that he has the mental ability to decide to cease stop using heroin and to detoxify himself alone. He has also used opiates and, occasionally, cannabis. While on an Intensive Corrections Order in 2000, Mr Truong returned positive urine analyses for opiates and cannabinoids as well as failing to complete the treatment programme. That report went on to assess Mr Truong as being a maximum risk offender under the LSI programme. The factors contributing to that assessment are his early convictions, recidivism, unemployment, contact with convicted criminals, drug abuse, lack of parental contact and attitude to crime. Mr Truong’s ability to stop offending are dependant on his ability not to use heroin and to manage financially on a much reduced income.
The advantages of Mr Truong’s being on parole were also noted. They were:
“If Mr Truong is serious about establishing a drug-free lifestyle, a period of Parole will provide the supervision and support needed for him to return to the community as a non-offending member. As it stands, the Parole period will be for 12 months if he is released on his earliest release date. This will be an arduous task for Mr Truong to complete and will therefore provide an opportunity for him for him to develop skills needed to maintain a non-offending lifestyle.” (Exhibit I at 2)
The Parole Assessment Report recommended against Mr Truong’s being granted parole at that time. Instead, it recommended that his application be considered several months later when the Department had completed its consideration regarding his visa and a decision made. If he were released at an earlier time, he could be considered a flight risk.
Despite the recommendation, Mr Truong was released on parole on 12 June 2004. A Special Report was prepared on 11 November 2004 in relation to Mr Truong’s progress. The overall assessment was that Mr Truong has satisfactorily complied with all conditions of his order. He gave a reasonable excuse for his one failure to report as required during the period of Intensive Parole. He last attended the Sunshine CCS on 9 November 2004 and has not been able to since as a result of his being placed in immigration detention. An Individual Management Plan was formulated to highlight his drug use, cultural supports and unemployment as areas of risk and need. Strategies were implemented to address these areas and to reduce his risk of re-offending.
While he had been in prison, Mr Truong had been assessed and referred for further treatment with Mr Loc Pham at the Australian Vietnamese Women’s Welfare Association. He attended his first appointment on 26 July 2004 and completed the programme on 6 September 2004 after attending six counselling sessions. The Special Report notes that the Exit Report prepared at the completion of the programme records that Mr Truong participated very well. In addition, he had “… demonstrated a successful… engagement in an entry point to long-term treatment that is necessary to address his drug problem” (Exhibit H at 2).
In addition, the Special Report noted, Mr Truong was:
“… referred to participate in the Indo-Chinese Program in order him [sic] to receive counselling based on cultural needs which will help him to avoid further re-offending in the future. Mr Truong completed this program on 16/08/04, after attending four counselling sessions. The Exit Report indicates that Mr Truong has gained more confidence. He has put a huge amount of energy into seeking employment in which he was facing challenges due to his poor working history.” (Exhibit H)
In a report dated 20 June 2003 Ms Miranda Eilul, Counsellor, Drug Treatment, and Ms Ann Berrett, Senior Psychologist, wrote that he had completed the Intensive Drug Treatment Programme at Fulham:
“… to a very high standard. His frequent and spontaneous contributions revealed a genuinely positive attitude. Hung applied program concepts to himself and insightfully identified his own issues. He encouraged the group process by challenging others when appropriate and interacting well with all members.
During the program Hung experienced some difficulty dealing with separation from his family. He provided one positive urine during stage 4, and was re-contracted for this.
Hung stated that he enjoyed the group and benefited from it. He appears committed to change and keen to re-unite with family. At his request he was referred to a range of programs and individual counselling upon completion of the program.” (G documents at G8)
While he was imprisoned, Mr Truong is recorded as having the following results in relation to drug tests:
| Date | Result | Prison |
| 28 April 2002 | Unable to complete drug test | Port Phillip Prison |
| 18 July 2002 | Positive drug test | Fulham |
| 28 April 2002 | Unable to complete drug test | Port Phillip Prison |
| 18 July 2002 | Positive drug test | Fulham |
| 22 October 2002 | Oth. drug notify | Fulham |
| 29 October 2002 | Positive drug test | Fulham |
| 19 April 2003 | Positive drug test | Fulham |
| 25 May 2003 | Positive drug test | Fulham |
| 22 June 2003 | Positive drug test | Fulham |
Mr Truong said of his positive drug tests that he had marijuana at Fulham. When Mr Fell suggested that he had returned five positive drug tests, Mr Truong did not think that could be right. He thought that the times he could not pass urine for the test had been included in that number.
Ms Miranda Ellul, Counsellor at Fulham, wrote on 11 May 2004 to:
“… confirm that Ngoc Hung Truong has undertaken detailed counselling with myself over the last six months, since he completed his Intensive Drug Treatment Program. He has shown a commitment to addressing his history of drug approach to his own personal development and rehabilitation. He has outlined a release plan, which contains realistic goals, to aid him in maintaining a drug-free and non-offending lifestyle.” (G documents at G9)
Mr Truong’s life since his release on parole
Mr Truong said that he has not committed any offences since his release on parole. He has neither returned to the use of illicit drugs nor taken up with his previous associates or with other drug users. He has tried to take up with a new group of friends. Between June and November 2004, he looked for work but, although he attended many interviews, could not find suitable work. Mr Truong has been assisted by James from the Job Network in St Albans and by counsellors from the Vietnamese Welfare Organisation in Footscray. He sees James and the counsellors regularly. Mr Truong has been offered seasonal farm work but the parole officers did not allow him to accept the offer. In any event, he would prefer factory work so that he could continue to visit Dylan and Wendy each day. Ms Tran confirmed that she had helped Mr Truong to find work but, although he has attended many interviews, he had not been successful in finding employment.
Mr Dredge is the CSEPP Coordinator at the Djerriwarrh Services wrote of Mr Truong’s being an active participant in the Correctional Services Employment Pilot Program from 5 July 2004 to 11 November 2004. He continued in his letter dated 18 January 2005:
“In this time I was impressed with Hung’s positive attitude and commitment to his job search. Hung attended CSEPP appointments regularly in this period and completed all employment related tasks allocated to him.
He participated in job search training, resume writing, applied for job vacancies, and completed a forklift-training course with Civic Training in Yarraville.
While Hung did not gain employment through the CSEPP program, he made significant progress towards this goal.” (Exhibit G)
Mr Truong’s relationship with his children
When he was imprisoned at Port Phillip, Ms Tran visited him three times a week. Each time, she took Dylan and Wendy with her. When he was transferred to Fulham, she could no longer visit as she had a CRN or prisoner number. That meant that she was unable to take the children to visit Mr Truong but she and he told them that he had gone away to work. In that way, he was able to telephone them to maintain his relationship with them. He would tell his daughter how many months or weeks it was until she would see him again.
Ms Tran said that, even though Dylan is not Mr Truong’s natural son, they love each other very much. When he went to prison early in 2001, Wendy was too young to understand but she did miss him. After his release in 2004 and before he was detained, he has spent a lot of time with the children. He would often bathe the children and cook for all of them. She has seen no signs that he is using drugs. If he were, she would not let him in the house. Ms Tran has no doubt that Mr Truong would continue to provide love and support for Dylan and Wendy if he were allowed to stay in Australia; he is a very caring and generous person. If he were required to leave Australia, Ms Tran said that it would be very hard for both the children as well as for her. They will all miss him and the children are always asking her when they can see “our Daddy”.
Ms Lena Tran confirmed that Mr Truong treats Dylan as his own child. In his statement, Mr Lam said of Mr Truong’s relationship with his children:
“Hung is prepared to do anything for his kids. He really cares for them. He telephones them often. Before he was arrested by Immigration, he saw them regularly and paid money to help support the children whenever he could. He and the children get on very well. If he is forced to return to Vietnam it will be very hard on Dylan & Wendy.” (Exhibit D at [2])
Mr Debrincat said that he and his wife have seen that the relationship between Mr Truon and Dylan is very close. Dylan really looks forward to seeing his “Dad” and is always talking about his “Dad”. Throughout the time that they cared for Wendy, Mr Truong would telephone her to see how she was. When he was released from prison, Mr Debrincat and Ms Muscat met him both at their house and at Ms Tran’s house. They saw that Mr Truong is close to his daughter, who also calls him “Dad”. She always greets him with a cuddle. They believe that Mr Truong is trying to maintain a good relationship with his daughter. Both children love Mr Truong and talk about him often. If he were to return to Vietnam, Mr Debrincat is sure that the children would miss him a lot.
Since his release from prison, they have never seen any sign that he has been involved with drugs. In the approximately ten times that they saw Mr Truong after his release from prison and before his being taken into immigration detention, he has always seemed stable to them. They have taken the children to see Mr Truong once at the detention centre. Mr Debrincat knows that Ms Tran takes the children to the detention centre often.
Mr Truong’s other relationships in Australia
Ms Tran said that her parents treat Mr Troung as one of the family and he gets on very well with her brother and two sisters. Her mother visits the family in Melbourne. On her most recent visit, she spoke with Mr Truong about his using drugs and emphasised that he must not do so again. Ms Tran knows that Mr Truong respects her mother and that he listens to what she tells him. He will do what she tells him.
Ms Lena Tran is Ms Tran’s younger sister. She has known Mr Truong for seven years and he has been a big brother for her. As her parents have been away to attend to family matters, he has also been a father figure for her. She is grateful for his being “… such a great person with a good heart for being a part of ... [her] life. … [He] is always been really encouraging and supportive” (Exhibit F).
Mr Ferguson spoke of Mr Truong’s recent attendances at the Vietnamese Buddhist temples in Springvale and Sunshine and the Quang Minh Temple in Braybrook. He attends on Buddhist days held each month and seeks the advice of individual monks. In addition, Mr Truong has assisted the congregation in fundraising and other support activities. His attendances at Buddhist temples follows on from his having attended similar services while at Port Phillip Prison and then at Fulham.
Mr Truong’s return to Vietnam in 1998 and 1999
Mr Truong has travelled to Vietnam on two occasions since he left. The first was for the period from 18 April 1998 until 4 June 1998 and the second from 25 April 1998 until 2 August 1999. Mr Truong said that he found it very difficult to go there as he did not know his younger brothers and sisters and had difficulty in understanding why his parents had forced him to leave them. Of Vietnam, Mr Truong remembers very little from his childhood. It is a country of which he knows very little. Although he has visited it twice, it was too difficult and too different. Everything had changed since he left when he was very young.
Mr Ferguson wrote of Mr Truong’s visits to his family in Vietnam:
“Truong Ngoc Hung reports that his parents and siblings in Vietnam are very distressed by his offences and conviction and urge him to rehabilitate himself. He has telephoned them. He tries to perform the duties of a filial son and nephew in the Vietnamese tradition. He has tried to support his uncle and his family and still speaks of his obligation to support his parents financially. When he returned to Vietnam in 1997 or 1998, he went with his older brothers. Although he writes of it as a holiday, the underlying purpose of the trip was to pay their respects and to contribute money they had earned from factory work or fruit picking to their parents.” (G documents at G8)
The future
Before Mr Truong’s release from prison, Mr Ferguson offered him a place to stay at his home as well as his support in his rehabilitation. He also offered to refer him to support services to meet his employment, training and other needs. Mr Truong did not take up the offer but he did contact Mr Ferguson after his release. He got in touch with him again after his immigration detention and asked for help in explaining the documents he had received from the Department and the Tribunal. Since his detention, Mr Ferguson has visited him several times and they have had several telephone conversations. His offer of assistance remains open to Mr Truong to accept.
Mr Truong’s wish is to do something for his daughter, Wendy. He lived without his parents when he was just a little boy and he does not want the same for his daughter. If he had to return to live in Vietnam, he would like to ask Ms Tran to go with him but he does not think that she would go.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of the type held by Mr Truong are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a visa of the is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 i.e. that there is no evidence that might justify refusal of the visa under s. 501.
Even if a person satisfies the primary criteria for a visa, s. 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s. 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)…
(b) …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)…”
The term “imprisonment” means “… any form of punitive detention in a facility or institution” (s. 501(12)).
I find that Mr Truong has a substantial criminal record. That is so on two bases. First, he comes within s. 501(7)(c) because of his being sentenced for murder to 15 years with a non-parole period of 10 years. Second, he comes within s. 501(7)(d) because his earlier convictions and the sentences imposed in May 1996, June 2000 and August 2001. The sentences imposed at those times exceed the two years required by s. 501(7)(d) even though some were ordered to be served by way of an Intensive Corrections Order and others were suspended.
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, “… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Truong has a substantial criminal record within the meaning of s. 501(7)(c) and so does not pass the character test.
The authorities regarding “good character”
Although Mr Truong has not passed the character test, it is worthwhile to focus for a moment on what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)
In Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)
The Direction – exercise of the discretion
As I have found that Mr Truong does not pass the character test, I must now consider whether or not his visa should be cancelled. This is the discretionary aspect of the character test. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:
“… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.” (Direction, cl. 2.2)
The three primary considerations are:
“(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, cl. 3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Truong’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future (Direction, cl. 2.5).
Of particular significance in relation to the seriousness and nature of Mr Truong’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;
the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community.
(b)organised criminal activity resulting in a conviction in Australia or elsewhere;
…” (Direction, cl. 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Truong as mitigating factors (Direction, cl. 2.8(a)). The sentence imposed for any offence is regarded as an indication of the seriousness of the offender’s conduct against the community (Direction, cl. 2.7). So too is the extent of the person’s record and the time between offences and the repugnance of the crime. Mitigating factors must be taken into account.
Clause 2.9 of the Direction is concerned with those who suffer from psychiatric conditions:
“In relation to non-citizens who do not pass the Character Test due to convictions resulting from unsoundness of mind or insanity, the degree of recovery must be taken into consideration. If the non-citizen continues to rely on medication to control their condition, the non-citizen cannot be defined as having fully recovered. Moreover, the likely consequences of a non-citizen deliberately or accidentally not taking their medication must be considered.”
Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Truong’s case, it is relevant to have regard to:
“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, cl. 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (Direction, cl. 2.11(a)). It may be relevant as follows:
“(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b)the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.” (Direction, cl. 2.11)
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, cl. 2.12)
The third primary consideration relates to the best interests of a child. There are two children in this case and each is under the age of 18 years. It should not be assumed that their interests will coincide. In general terms, the Minister states that the best interests of a child will be best served by remaining with the child’s parents. The circumstances of a particular case may point to that not being in the child’s best interests. Those circumstances include any evidence that the person has neglected or abused the child or that the person’s conduct has led to the child’s suffering or experiencing any physical or emotional trauma (Direction, cl. 2.15). When considering the best interests of the child, decision-makers should have regard to the following:
“(a) the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen’s prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.” (Direction, cl. 2.16)
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)
Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community; …
(b) genuine marriage to or de facto or an interdependent relationship with an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within … the visa refusal and cancellation provisions at section 501.” (Direction, cl. 2.17)
Should Mr Truong’s visa be cancelled?
Apart from the fact of his being convicted in relation to the earlier offences, I do not have any details of the earlier convictions. I have only evidence in relation to his last conviction for trafficking heroin. That evidence comes from Mr Truong and Ms Tran and from the sentencing remarks of Judge Morrow.
For the reasons that I gave in Re Ince and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 92 at [112] to [124], I consider that I am bound to accept that the elements of the offence of trafficking on the last occasion have been established. It is an offence that leads to the conclusion that Mr Truong has not passed the character test. Consequently, it is at the foundation of the Tribunal’s power to consider whether or not Mr Truong’s visa should be cancelled.
In Victoria, it is an offence proscribed by s. 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and its elements are set out in the following passage by Lush J:
“Trafficking connotes an activity in a commercial setting, that is to say a setting in which it can fairly be inferred that someone involved is making a profit, though not necessarily the person charged with trafficking. Secondly, I would adopt the concept that trafficking connotes participation in the progress of the goods from source to consumer. The alleged participant may be no more than a carrier, even a voluntary carrier, and it is not necessary that either title or possession should at any stage be his. Thirdly, the concept of movement of the goods between the source and the consumer implies a contact between the alleged trafficker and at least one other person. Trafficking may be proved by a delivery or selling to another person, or possibly, by purchase or receipt from another person. In some situations it may be sufficient if it appears or can be inferred that there exists some person who plays the role of the previous person or the next person to the alleged trafficker in the relevant movement, even if the identity of that person is unknown. I do not intend this appreciation to be exhaustive of the possible implications of the word trafficking, but I think it is sufficient for the purposes of the present case.” (R v Holman [1982] VR 471; 4 A Crim R 446 (CCA) per Lush J at 475-6; 451)
The fact that Mr Truong has been convicted of one count of trafficking does not mean that he only engaged in one movement of heroin for it encompasses both an isolated act and a series of acts (R v Giretti (1986) 24 A Crim R 112 at 118 per Crockett J).
I am bound by these elements and Mr Truong does not seek to walk away from them. What he seeks to deny are some of the particulars referred to in the sentencing remarks made by Judge Morrow. They were that he hired a vehicle for the delivery to country locations and that the enterprise he conducted with Ms Tran was a sophisticated one involving sub-agents. These factors are not essential elements of the offence of trafficking. They are matters that were taken into account in fixing the sentence. Applying the principles summarised by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at 325-6; [41]-[45], it is open to challenge these facts but there is a heavy onus on Mr Truong in doing so.
I would add that the heavy onus necessarily follows from the role of the judge in sentencing whether or not sentencing follows a trial by jury:
“1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …
2.Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion …
3.The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict …[This] is an inevitable consequence of the division of functions inherent in trial by jury.
4.A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5.There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. … When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency …”. (R v Isaacs (1996) 41 NSWLR 374; (1997) 90 A Crim R 587 (CCA) at 377-8; 591-2)
Where a person has pleaded guilty to an offence, the elements of that offence are necessarily admitted. There is no need to lead any evidence in relation to them. Any facts beyond those elements must either be proved by evidence or be admitted by agreement between the prosecutor and the defence (Gas v The Queen (2004) 78 ALJR 786 at 793-4; 206 ALR 116 at 125-6; [28]-[31]). Where facts have been agreed, a judge may only depart from those facts, or from facts inferred from those facts, if the parties are given sufficient notice to consider whether to challenge that departure and, if appropriate, to withdraw the plea (R v Duong [1998] 4 VR 68; 99 A Crim R 218 (CA) at 77; 228 per Kenny JA).
These principles are directly relevant in this case for Judge Morrow has recorded that it had been agreed that Mr Truong was sentenced on the basis of a summary based on a statement made by Ms Tran. Ms Tran said that she had not made the statement attributed to her and yet it was implicit in Judge Morrow’s sentencing remarks that he had sentenced Ms Tran on the same basis. There is no suggestion in the material that I have been given that any challenge was made at the sentencing to Judge Morrow’s statement of the agreed facts or to his statement that there was an agreement at all. Mr Truong agreed that others had, on occasion, made deliveries for him but that they had not been paid. Rather, they were simply returning favours. It is clear that he would not regard these people as “subagents” but perhaps there is not so much difference between Mr Truong’s description and that of Judge Morrow. I find that he did use people other than Ms Tran to make his deliveries on occasion however he described them and whether or not he paid them.
The more major differences relate to the hiring of motor vehicles and deliveries to the country. Both Mr Truong and Ms Tran are adamant that they did neither. I accept that they did not and do so not just on the basis of their evidence but also on the basis that Judge Morrow did not specifically find that they had. Instead, his Honour found that Mr Truong had included them in an explanation of a complicated system for delivery of heroin to the country. Whether or not deliveries had actually been made to the country is not a matter he made a specific finding about.
Even with these two modifications, the offence of trafficking is a very serious offence. The Direction has classified it so but quite apart from that, there can be no doubt about that by reason of the harm that may be caused to an individual and the costs to the community if there is harm both in terms of care of the individual and in loss of the individual’s contribution to Australia’s economy and social and cultural capital. The circumstances of Mr Truong’s offence add an extra dimension to the seriousness of the offence he committed. It was not simply a one-off instance that comprised the offence. Rather it was a series of instances. In that series of instances, he not only harmed the community and its members, who were part of his life in only a commercial sense, but brought the harm to his own doorstep. He did that when he drew into the web of supply his friends and his then de facto wife and the mother of his daughter. It could well be said that Ms Tran and his friends should have known better than to be involved. Ms Tran particularly did not have a drug habit to support and so justified her actions only on the basis of helping her partner to make money to support his drug habit. Mr Truong drew her into delivering heroin because he wanted her to help him. They should not have allowed themselves to become involved but Mr Truong should neither have asked them or permitted them to become involved. It began as his operation and there is no evidence to suggest that he did not have the power to keep it to himself. The offence committed by Mr Truong was very serious indeed.
What of the likelihood of Mr Truong’s committing further offences if he were permitted to rejoin the Australian community? The pattern of his convictions spans some six years. Except for 1997 and 2001, when he had two sets of convictions in each year, and 1998 when he had none, Mr Truong had a pattern of one set of convictions each year. Apart from two counts of possession of a regulated weapon, a breach of suspended sentence and failure to comply with an ICO, all offences related to heroin. They related either to his possessing, using or trafficking heroin.
On the basis of his evidence, I accept Mr Truong’s evidence that he resumed trafficking when he resumed using as he needed one to fund the other. I also accept Mr Truong’s evidence that he has been able to stop taking heroin for periods of between six and twelve months. In the five month period between his release on parole in June 2004 and his being detained in November 2004, I find that he did not use heroin. Why he resumed his use over the years is not clear to me from the evidence. Taken on its own, the pattern of his offending could be seen as simply a disregard for the law. That is a matter for concern but I am satisfied that there are clear differences between his situation now and immediately before his arrest for the trafficking offence on 31 January 2001.
To the time of his arrest, he had served only seven days’ imprisonment. That had occurred in 1997 before he had met Ms Tran. Although he had been sentenced to terms of imprisonment before 1999 when he met Ms Tran, he had not been imprisoned as the terms had either been suspended or served by way of an Intensive Correction Order. He breached the suspended sentence imposed for his first offence in 1996 but the sentence was again suspended. Mr Truong also breached the Intensive Correction Order imposed in 2000 but by the time he was charged with that, he was already in custody for his last offence. He was not free from 31 January 2001 until his release on parole in June 2004. By that time, he had been living with Ms Tran and enjoying a family life with her and her son Dylan. He also had a baby daughter of his own. His imprisonment on the last occasion was the first occasion on which he had had anything to lose. Having listened carefully to Mr Truong, I am satisfied that he felt his loss keenly. He worked hard to maintain contact with Ms Tran and the children. Ms Tran was instrumental in that until he went to Fulham and she was no longer permitted to visit him. Despite that, I find that he has telephoned his children regularly and did so several times a week even when they were staying with Mr Debrincat and Ms Julie Muscat during Mrs Tran’s imprisonment.
To some, these may seem small things or events that happen as a matter of course in a person’s life. They are not and they are certainly not matters that have happened as a matter of course in Mr Truong’s life. He was given no choice in the way in which his early life was lived. His move from Vietnam to refugee camps in Hong Kong was a choice made for him by others when he was a very young boy. Based on his evidence and that of Mr Ferguson, I find that life for him in his uncle’s house was not easy. In his professional life, Mr Ferguson has had long experience in working with children in positions not unlike that of Mr Truong. He has visited the home of Mr Truong’s uncle several times. I find that Mr Truong was expected to care for his uncle’s children and did not receive financial or emotional assistance or support that he needed from his family to learn English, complete his education and find his place in society. I accept that Mr Truong’s uncle suffered from emotional problems that may have made his providing the necessary assistance or support difficult but that finding does not detract from the fact that Mr Truong did not receive it.
Even though he has now lost the love of Ms Tran as she has moved to another partner, he has not lost her regard and nor has he lost the love of his children. These are very important factors in Mr Truong’s life. I accept that he does not want to lose them. The possibility that he may lose them are weighty factors in keeping him from re-offending.
Another difference between Mr Truong’s situation now and before his arrest in 2001 relates to his completion of the Intensive Drug Treatment Programme at Fulham. That is the first course that he has undertaken. Ms Berrett’s report about his conduct and participation in the course is very positive indeed. Certainly, Mr Truong returned positive drug tests during his imprisonment and both before and at or about the time of his completing the Intensive Drug Treatment Programme. On the basis of the dates of the reports, I find that Mr Truong completed that programme in or about June 2003. I find that he undertook a further six months of counselling with Ms Ellul after the completion of the programme. There is no record of positive drug tests after June 2003 and before his release on parole. Since his immigration detention, there have been no instances of his possessing or using drugs. In all, therefore, Mr Truong has been free of drugs for over eighteen months. This is a substantial improvement over his previous best of only six or twelve drug-free months. In those eighteen months, Mr Truong has proved himself serious as the Parole Assessment Report predicted that he would need to be. He has, I find on the basis of his evidence, turned from his friends who were involved with drugs and turned back to Mr Ferguson for help.
Although it must be acknowledged that Mr Truong still has a long road to take, these are all factors that lead me to conclude that his chances of re-offending are less than his six year pattern of offending would suggest. Those chances are further reduced each day that passes without his resuming his former ways. Each day that passes shows that he has gained a maturity and a degree of self-control that both acknowledges that his previous path in life was wrong and that he is trying to rectify his ways. He has shown resipiscence (R v Jabaltjari (1989) 64 NTR 1 at 14 per Asche J). That is to say, he has shown “Repentance for misconduct; recognition of errors committed; return to a better mind or opinion” (Oxford English Dictionary, 2nd edition, 1989). I am satisfied that his efforts will be enhanced by the knowledge that he can turn to Mr Ferguson in the future even if he never actually needs to.
I turn now to deterrence. The Direction states that a visa refusal or cancellation may deter others from committing offences similar to that committed by the particular person under consideration. It may do so in a theoretical sense but, unless I can find that there is some likelihood, however slight, that it will do so in this case, it is difficult to see how I can place weight on this factor. There is no evidence that I have been given as to the deterrent effect that requiring a person’s departure from Australia has on other people’s behaviour. To be a deterrent, knowledge of the cancellation of Mr Truong’s visa must become known. There is no evidence that it will become known to anyone apart from those who have given evidence in this case or to the Department or the parole authorities. Even if those people know, there is no suggestion that their behaviour may be altered or even that they are not Australian citizens, who may give the matter some consideration.
The notion of deterrence in the Direction equates with the notion of general deterrence in sentencing where it has a role to play as:
“… sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things. Courts cannot and should not be unmindful of the important public dimension of the criminal sentencing and the importance of maintaining public confidence in the sentencing system.” (R v Howells [1999] 1 WLR 307; 1 All ER 50 (CA) at 312; 54)
The notion of general deterrence may be relevant even when the offence is rare (R v Osip (2000) 2 VR 595; 610-11.
Even in the criminal jurisdiction, however, concerns have been expressed about the extent to which regard may be had to general deterrence:
“Whatever the judge may say, his remarks may or may not reach that section of the community to which they are directed, depending upon whether those who publish reports of court proceedings regard the remarks as being worthy of reporting, and whether the criminally-minded persons for whom they are intended read or listen to any report which may be made. It is useless to suggest that one of the purposes of a sentence is to deter others from committing a similar crime, if the knowledge of such sentence does not come to those who are likely to commit the crime.” (Mitchell J, The Web of Criminal Law, 1975 Boyer Lectures, ABC, Sydney at 49)
In this case, I do not have the evidence on which I am able to make a finding regarding deterrence other than to say that there may be a possibility, but no more, that cancelling Mr Truong’s visa may deter somebody from committing a similar offence.
Turning to the expectations of the Australian community, there is no question that the majority of the Australian community expect that those who come here will obey its laws. Breaches of some laws will be considered minor and even tolerated. Others are not and breaches related to the trafficking of drugs are among the latter. Most members of the Australian community have a very grave concern about illicit drugs and a very grave concern for those who take them. This is a matter that is “… within the knowledge of ‘every well-informed person in Australia’ …” and so a matter of which I can take judicial notice (Simpson v The Queen (1998) 194 CLR 228; 155 ALR 571; 103 A Crim R 19 at 234; 575; [14] per Gaudron and McHugh JJ). That concerns extends to the families for illicit drugs and their consequences may consume not only the individual but all about them. Looked at more broadly, drugs have economic consequences in terms of support and health care of those affected to the loss of their contribution to the community in economic and social terms. Those who supply those drugs are abhorred.
In relation to an offence such as drug trafficking of heroin, it may be regarded by some as an offence that cannot be tolerated and so justify the offender’s removal. Some may give no thought to mercy, thinking that this is an example of a situation in which:
“In the public administration of justice, mercy to one may be cruelty to others.” (1711, Joseph Addison, The Spectator, No. 169)
What is inherent in their position, though, is that they have given thought to mercy. Mercy is also something to which regard is paid in the Direction. Clause 2.12 does not attempt to proscribe the circumstances in which the Australian community will consider that the mere nature of the offence will justify refusal or cancellation of a visa.
Again, this is consistent with the approach taken in the criminal courts which are equally concerned with the protection of the Australian community as is the Minister in exercising her powers under s. 501 of the Act. In South Australia, King CJ said:
“… There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.” (R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 at 212-3; 394)
A similar approach was taken by Wallace J in Western Australia:
“Public concern about a crime must never be allowed to bring about departure by the courts from the fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations: Yardley v Betts (1979) 22 SASR 108 at 112-3; 1 A Crim R 329 at 333. Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courts ought surely do so: Webb v O’Sullivan [1952] SASR 65 at 66. Nor is mercy to the individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 324.” (R v Rowe (1991) 52 A Crim R 196 at 201 per Wallace J)
Although considerations in the migration jurisdiction are not limited by those in the criminal jurisdiction, I consider that guidance can be gained from the criminal jurisdiction and particularly so as the Direction, to which I am bound to have regard, does not purport to “… create any presumption as to the way in which that discretion should be exercised. …” (Aksu v Minister for Immigration and Multicultural Afffairs (2001) 65 ALD 667 at 674 per Dowsett J). Compassionate grounds are considered under clause 2.17(j). It is not a primary consideration but the Australian community does not weigh up its reaction to offences and a history of offending without having regard to mercy. It is artificial to try to do so and it seems to me that clause 2.12 of the Direction does not attempt to do so.
Mercy tempers what might otherwise be seen by the Australian community as Mr Truong’s just deserts in this case. It does it in this way. Mr Truong was brought to Australia by his uncle in circumstances where he had no choice in the matter. He was part of a family group that sought refuge in Hong Kong. They applied for, and were granted, a visa to migrate to Australia as a family group. No-one could question the orderly fashion in which they migrated. Once here, Mr Truong was still a schoolboy faced with responsibilities to care for others while he was in need of care himself. He found some of that care at school but not in his home life. Mr Truong is to be admired for attempting to continue his schooling even though he was not living with his extended family much of the time and often had no proper place to live. He is not to be admired for falling into drug-taking; far from it. Once he had started, he continued a pattern that involved him in trafficking to maintain supplies of the drug for his own use. His attempts to take himself away from that pattern are deserving of consideration when viewed against the manner in which he came to be in the situation in the first place. If the Australian community were fully informed of all of Mr Truong’s circumstances, I am satisfied that it would see it as a case in which the abhorrence of the crime has been tempered by the circumstances. It would not necessarily expect his removal from Australia.
That brings me to the children, both of whom are Australian citizens. Having listened to Mr Debrincat, Ms Tran and Mr Truong as well as observed them all at the hearing, I am satisfied that Mr Troung enjoys a very close relationship with both Dylan and Wendy. He treats Dylan as his son and I am satisfied that he effectively stands in loco parentis in relation to him. They are all loving with each other. Mr Truong has worked hard to maintain that relationship with both of the children. In the case of Wendy, he had to build that relationship while he was in prison for she was only six months old when he went to prison. He has clearly succeeded in doing so and sees them regularly if not every day. If he is permitted to remain in Australia, I am satisfied that he will continue to do so and that the bonds that are already strong will deepen.
If he is not permitted to remain in Australia, I find that he would have to travel to Vietnam without Ms Tran or the children. He would wish it otherwise but Ms Tran has no wish to move from Australia. She has no wish to resume a marital-like relationship with Mr Truong but has maintained, and wishes to continue to maintain, a relationship with him as the father (or father figure) in her children’s lives. There is no specific evidence regarding the effect of the separation of children from one of their parents. Again, I think that it is a matter “… within the knowledge of ‘every well-informed person in Australia’ …” that, all things being equal, it is not in their best interests to be separated. Indeed, the Direction itself acknowledges that, in general terms, children’s best interests are served when they are not separated from their parents. The fact that their father has convictions is not a reason in itself to conclude that they are better off without him. He is a person who is making every effort to rehabilitate himself. While he continues to do that, it can be expected that his conduct will have a positive impact on the children. If he should re-offend, the effect on the children would have to be assessed at that time given the circumstances of the re-offending. As matters stand, I am satisfied that it is in the best interests of the children that he remain with them in Australia.
Mr Truong has parents and siblings in Vietnam but, having been taken away from them at an early stage of his life, I find that he has no real relationship with them. He and his brothers have visited them twice but I accept Mr Ferguson’s view, based on his experience, that Mr Truong undertook those visits as a matter of duty. Even though he has no ties with Vietnam, Mr Truong may be enterprising enough to make his way but I can go no further in that regard.
Apart from the notice that he was given during his most recent term of imprisonment, I find that Mr Truong was not given notice of the fact that his visa could be cancelled if he committed offences or further offences.
Taking all of these matters into account, I am satisfied that Mr Truong should be given a second chance to prove himself. Should he re-offend, the consequences to the Australian community are likely to be very serious. That is offset by the chances of his rehabilitating himself. His chances of doing so are greater than they appeared when he was released from prison on parole and improve with each day that he remains drug free. He has the support of Ms Tran and her partner, Mr Debrincat and Mr Ferguson. If he is able to continue to rehabilitate himself, the Australian community will benefit if only because his children will benefit from having their father or, in the case of Dylan, his father figure, in regular contact. He has proved himself a willing worker. Once he has found work, he will also make a contribution in that regard.
For the reasons I have given, I:
1.set aside the decision of the respondent dated 23 September 2004; and
2.substitute a decision that the applicant’s Class BB subclass 155 visa not be cancelled on the basis that he does not pass the character test pursuant to s. 501 of the Migration Act 1958.
I certify that the one hundred and twenty preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Hearing 25 January 2005
Date of Decision 3 February 2005
Counsel for the Applicant Mr G. HughanSolicitor for the Respondent Mr A. Fell
Australian Government Solicitor
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