Vinh Tran and Minister for Immigration and Citizenship
[2012] AATA 384
•26 June 2012
[2012] AATA 384
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1376
Re
Vinh Tran
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 26 June 2012 Place Sydney The decision under review is affirmed.
.................................[sgd].......................................
Senior Member A K Britton
CATCHWORDS
MIGRATION - visa cancellation - Direction no. 41 - criminal history of increasing seriousness - hardship - all other factors outweighed by unacceptable risk to the Australian community - decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW) – ss 33B, 97, 112
Migration Act 1958 (Cth) – subss 499, 501, 501(1), 501(7)(c)
CASES
Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362; [2011] FCA 91
REASONS FOR DECISION
Senior Member A K Britton
26 June 2012
Twenty-six-year-old Vietnamese national, Vinh Luan Tran arrived in Australia at 11 years of age. He has a lengthy criminal history. He commenced his first custodial sentence shortly after turning 18 and subsequently served a further four custodial sentences, totalling six-and-a-half years. He is currently in prison, having been convicted of the offence of “aggravated break and enter” (s 112 of the Crimes Act 1900 (NSW)) and will be eligible for parole within a month. He has applied to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to cancel his Australian visa. For the reasons that follow I have decided to affirm that decision. This means that Mr Tran will be required to return to Vietnam.
Section 501 of the Migration Act 1958 (Cth) (the Act) confers on the Minister, and the Tribunal acting as substitute decision-maker, the power to cancel a visa where the visa holder does not pass the “character test” because he or she has a “substantial criminal record”. Mr Tran has a “substantial criminal record” because he has been sentenced to a term of imprisonment of 12 months or more. The discretionary power to cancel his visa is therefore enlivened (ss 501(1), 501(7)(c) of the Act). In deciding whether that power should be exercised, “Direction [no. 41] – Visa refusal and cancellation under s 501” (the Direction), issued by the Minister under s 499 of the Act, must be applied.
The Direction instructs the decision-maker to take into account four “primary” and, where relevant, a number of “other” considerations. The primary considerations are (cl 10(1) of the Direction):
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
…
Listed at cl 11 of the Direction, the “other considerations” include the visa holder’s: family and other ties to Australia; age and health; links to the country to which they would be removed; level of education; hardship likely to be suffered by the person and their immediate family if the person is removed; and whether the person has been formally warned that reoffending may result in visa cancellation. The Direction provides that “other” considerations should generally be given less weight than primary considerations (cl 11(2) of the Direction).
Of the factors required to be taken into account by the Direction, of particular relevance in this matter are: the protection of the Australian community, Mr Tran’s age on arrival in Australia, the likely hardship he will suffer if he returns to Vietnam and the fact that he was warned that his visa might be cancelled if he reoffended.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction notes (at cl 5.1(1)) that the objects of the Act are to regulate in the national interest the coming into and presence in Australia of non-citizens and that, in this regard:
(2) … [I]in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
The Direction provides that factors relevant to the assessment of the risk of harm to the Australian community posed by the visa holder’s continued stay in Australia include (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated (cll 10.1.1, 10.1.2).
Seriousness and nature of the relevant conduct
The Direction states at cl 10.1.1(3) that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be had to the extent of the offender’s criminal record including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
In the assessment of the seriousness and nature of the conduct, the following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
Mr Tran’s criminal history is summarised in Annexure A to these Reasons. It reveals a pattern of offending commencing from when he was a juvenile. The offences committed as a juvenile were largely property and/or drug related. Those committed as an adult were of a more serious nature and include:
(i) Aggravated break and enter and commit serious indictable offence (s 112 of the Crimes Act), committed in July 2009: Mr Tran received a five year custodial sentence with a three year non-parole period. The offence carried a maximum penalty of twenty years. The sentencing judge summarised the facts of this offence in this way:
[T]he victim was asleep in the bedroom of his one bedroom granny flat at the rear of an address in Marrickville. At that time two men entered the rear yard of that address. They knocked on the front door of the flat and one of them yelled out "Police, police, open the door, police." The victim ignored that and remained where he was, with the door locked. The locked rear door of the flat was then forced open. The two men entered the flat. The locked bedroom door of the flat was also forced open. and two men (who had gone to the address with the offender), confronted the victim in his bedroom. One was armed with a knife, the other a torch. The knife was fifty centimetres long. One of the offenders, or perhaps both, said "Give me money, I kill you, I kill you". The victim then opened his wallet and put $250 on his bed. The offenders or one of them said, "Give me the keycard." The one with the machete or knife [not Mr Tran] then lunged … towards the victim. The victim then pulled back and pulled his blanket over himself in fear. The offenders took the cash; they also took the victim's keys to his BMW and his mobile phone …
(ii) Robbery armed with offensive weapon (s 97 of the Crimes Act), committed in 2006: Mr Tran received a three year custodial sentence with an eighteen month non-parole period after entering a guilty plea. While in the company of another, Mr Tran robbed the victim of his gambling winnings of just over $1000 at knifepoint. No physical violence was inflicted.
(iii) Using an offensive weapon to prevent lawful detention (s 33B of the Crimes Act). On appeal, Mr Tran was sentenced to an 18 month custodial sentence with a nine month non-parole period. He had been travelling on a train under the influence of sleeping pills when awoken by transit officers and asked to produce his ticket. When told that the officers intended to report him to police on suspicion of holding stolen property, Mr Tran produced a syringe, lunged at the officers and threatened them. He fled and was later arrested.
While each of the above offences involved violence, none fall at the high end of the scale in terms of seriousness. Nonetheless, each was considered sufficiently serious by the respective sentencing judge to warrant the imposition of a custodial sentence.
On the information before me, it would appear that most of the offences committed by Mr Tran as an adult were largely unplanned and opportunistic. However the most recent, and, in my opinion, the most serious, involved a degree of planning and craft.
In the assessment of the seriousness of Mr Tran’s conduct, the frequency of the offending, the period between the offences and the passage of time since the most recent offence was committed must also be taken into account. Mr Tran has offended on a regular basis over the past 12 years; reoffended within six months on the four occasions he has been released from custody; and been in custody since his most recent offence. These factors add to the objective seriousness of Mr Tran’s conduct.
Risk that the conduct might be repeated
In assessing the risk that Mr Tran might re-offend, the Direction instructs that the “highly relevant” and “particularly relevant” factors set out in cl 10.1.2 (1) and (2) must be taken into account. (See Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362 at 372-373.)
The Direction instructs that Mr Tran’s general conduct and total criminal history are “highly relevant factors” to the assessment of his risk of re-offending. While no conclusive evidence, it would appear from a number of reports that even before his arrival in Australia, Mr Tran had significant involvement in petty criminal activity. Given his background, it is perhaps not surprising that he became involved in criminal activity from an early age. It seems likely that due to his lack of parental support and education he developed unlawful “survival skills”. While this was very unfortunate for Mr Tran, and he cannot be blamed for the start he was given in life, the regularity of the pattern of offending — being caught, being punished, and being caught re-offending — suggests that over time he has become an habitual offender. His record suggests that there is a strong likelihood that he will continue to offend once released from custody and the escalation in seriousness of the offences he has committed also suggests that if he further re-offends the crimes will be continue to be serious crimes of violence.
Rehabilitation undertaken
Mr Tran has completed a number of rehabilitation courses while in custody. In addition to vocational courses, he has undertaken drug and alcohol rehabilitation programs including “Getting Self-management and Recovery Training” (SMART) a 12-session program designed to address addictive behaviour.
Mr Tran is currently participating in the Violent Offenders Therapeutic Program (VOTP), an intensive treatment program run by the NSW Department of Corrective Services. Mr Tran commenced the program in February 2012 and is due to complete it in early December 2012. In electing to participate in the program, Mr Tran acknowledged that he may have forgone the opportunity to be considered for release on parole, when he becomes eligible for release in July 2012.
Psychologist Mr Tom Hayes who oversees Mr Tran’s participation in VOTP, prepared a report for these proceedings and also gave oral evidence. He detailed the objectives of the program and the methodology employed. He explained that Australia was one of a number of countries using the program and the results to date have been promising.
Opinion about rehabilitation
The Direction instructs that in assessing the extent of rehabilitation already achieved and the prospect of the visa holder’s further rehabilitation, greater weight should generally be given to “independent and authoritative sources”, including judicial comments and parole assessments.
Of the independent and authoritative opinion before me, that held by Mr Hayes is the most recent and the most optimistic about Mr Tran’s prospects of reform. While Mr Hayes conceded that his opinion was necessarily speculative, as Mr Tran was yet to complete the program, he thought the evidence to date was promising. Despite an uncertain start, which Mr Hayes attributed largely to language problems, in his opinion Mr Tran’s participation in the program had been “extremely positive”. He stated that Mr Tran was an active member of the group and now led discussions. According to Mr Hayes, through the assistance of the program, Mr Tran has now identified a number of “viable strategies” which if implemented could be protective against recidivism.
A probation and parole report prepared in October 2011 was less optimistic about the prospects of Mr Tran’s rehabilitation. The author commented that despite Mr Tran having:
[M]ade some effort to address his offending behaviour and his educational and vocational skill deficits…there is more to be done in this regard if he is to pose an acceptable risk to the community.
On sentencing Mr Tran for the most recent offence, Walmsley DCJ commented:
By reason of the paucity of his education, employment history, his long history of drug use and his long criminal history, it is not easy to be anything other than guarded about his future prospects of rehabilitation. I am satisfied that if he has a lengthy time in prison, as will occur, he will get treatment. He will have treatment for drugs and alcohol and I expect that once he is released from custody he will have got rid of a lot of the problems he had when previously in the community. He will need a great deal of support once he is back in the community, to ensure that he keeps off drugs, and to assist him with his rehabilitation and his housing. In his favour is the fact that he is still a young man, and youth is an aspect which I take into account.
Mr Tran was assessed by psychologists Ms Michelle Player and Ms Anita McGregor in the context of his trial for his most recent offence for which he was convicted. In a report dated 26 November 2009, Ms Player identified Mr Tran’s main recidivism risk to be his prior illicit drug use. She recorded that Mr Tran had commenced illicit drug use in his early teenage years and was heroin dependent by age 15. She noted that Mr Tran claimed not to have used drugs for about a year. In her opinion, Mr Tran appeared committed to engage in a counselling service and to have matured out of some of his negative behaviours. In addition, she stated that he appeared capable of responding to interventions designed to reduce his recidivism risk.
In a report prepared about 12 months later, Ms McGregor wrote that Mr Tran appeared to be in the “pre-contemplation stage” — that is, the stage where a person has no intention of changing their behaviour in the foreseeable future. She wrote that while in interview Mr Tran made some comments about the need to change, he also “espoused a great number of antisocial cognitions”. In her opinion he appeared to lack insight to the barriers he needed to overcome to attain lasting change.
Conduct within custody
While in custody, Mr Tran has been found guilty of seven misconduct charges, most recently in January 2010. He has been classified as a minimum security inmate since April 2011. The material indicates that in the past two years there has been a general improvement in Mr Tran’s conduct and attitude.
Victim empathy
According to Mr Tran, during his current term in custody, he has developed insight and now fully appreciates the damage caused to the victims of his crimes.
This stands in marked contrast with the observations of Walmsely DCJ who remarked on sentencing Mr Tran for his most offence for which he entered a late guilty plea, “it is not easy to see that Mr Tran has any great remorse for his offence”.
Compliance with judicial orders
Mr Tran has a poor history of compliance with judicial orders. His most recent offence, for example, was committed while on parole.
Drug use
Mr Tran claims that he has not used illicit drugs throughout his current incarceration and reports that he has no intention of recommencing drug use on his release. While in custody, he tested negative to illicit substances in late 2011 and early this year. As I understand these are the only occasions he has been tested.
Support on release
Mr Tran states that he intends to reside with his maternal aunt if he is permitted to remain in Australia. The aunt cared for Mr Tran as a baby in Cambodia after his mother fled during the Khmer Rouge period. The aunt arranged for him to be placed with his grandparents in Vietnam and then migrated to Australia. She organised for him to migrate to Australia, on her account after the death of his grandmother. (Some reports indicate that the grandmother died a couple of years after Mr Tran migrated to Australia.) On arrival in Australia, Mr Tran lived with his aunt and his mother. Apparently, he found the discipline imposed by his mother difficult to accept and left home after a year. (The history recorded by Ms Player and Ms McGregor suggest that the Department of Community Services had received reports of Mr Tran being physically abused by his mother.) Mr Tran spent his teenage years living on the streets or in temporary sheltered accommodation. In the short period he has spent in the community as an adult, he has lived in rental accommodation. Since leaving home in his early teens, he has had irregular contact with his aunt and lived with her for short periods. He did not contact his aunt for the first two years of his current sentence, claiming that he felt too ashamed to do so.
The aunt is apparently pro-social. I accept that she is deeply attached to her nephew. She is financially independent, owns investment properties and operates a beauty salon which is open for long hours seven days a week.
The aunt testified, and Mr Tran agreed, that in the past she had made considerable efforts to assist him stay away from drugs and crime. While she concedes that her efforts to date have failed, she is committed to making renewed efforts if her nephew is permitted to remain in Australia. Among other things, she said she would assist Mr Tran to find employment. She claimed that as she is now self-employed she is better placed than she has been in the past to devote time to Mr Tran.
Mr Tran and his aunt have not had contact with Mr Tran’s mother for some years. Mr Tran stated that he hoped at some point to repair his relationship with his mother, whom he describes as a very religious and kind person.
Post-release employment
Mr Tran has been offered a position in a family-run building company on his release. He secured this position through a fellow inmate who is a friend of the company’s General Manager. The manager testified that he was prepared to give Mr Tran “a go” on the basis of his friend’s recommendation and had taken on troubled people in the past. He thought that Mr Tran’s language skills — Mr Tran claims to be fluent in Mandarin and Vietnamese — would assist him communicate with his largely Chinese workforce. He also thought that Mr Tran would be able to assist the company source competitively priced building materials in China. When the nature of Mr Tran’s offences, his limited employment history and the absence of evidence of any business contacts in Asia were revealed in cross-examination, the manager stated that he stood by his original commitment to offer Mr Tran a position, stating that he had confidence in his friend’s judgment. He stated that he had made the offer of employment because he believed Mr Tran could be useful to the company and if he found that this was not the case he would have no hesitation “letting him go”.
Warning of possible deportation
Mr Tran received written notice from a delegate of the Minister in January 2006 and April 2007 that consideration was being given to cancelling his visa on account of his “substantial criminal history”. For reasons not apparent, no decision was made until mid-2007.
In a letter dated 14 May 2007, Mr Tran, who was then half way through an 18-month sentence, wrote:
I now realise that the lifestyle I was living was wrong and it was not what I wanted for myself. I have now dedicated my life to change and to be a better person, I have set new goals and ambitions for myself. My goal is to become a chef in the near future and while here I have taken steps to reach my goal by furthering my education in the hospitality industry, while studying a correspondence course through TAFE. I realise that it was my drug habit that led me to be in gaol so I have sought help from the drug and alcohol councillor to address and deal with those problems I had. This has been a huge help to me and I am confident that I will not relapse again.
In July 2007, Mr Tran was notified of the decision not to cancel his visa. The decision-maker wrote:
Mr Tran needs to understand how close he has come to having his visa cancelled. I am giving him one final chance to make something of his life. He has positive reports from those helping him and an aunt willing to assist him. His history of drug use is a disappointing one. I hope Mr Tran takes this opportunity to turn his life around but I am not optimistic of him succeeding.
Mr Tran went on to re-offend on three separate occasions after receiving this notice.
PROTECTION OF THE AUSTRALIAN COMMUNITY: FINDINGS AND CONCLUSIONS
This consideration, the Protection of the Australian Community, requires an assessment of the seriousness of Mr Tran’s offences and the risk that the conduct might be repeated. Mr Tran has been convicted of a number of serious and violent offences. While none could be described as falling at the high end of the scale for the type of offences committed, his crimes have progressively become more serious and more violent. Of particular concern is the frequency of the offending.
Counsel for Mr Tran contends that a number of recent developments indicate that Mr Tran displays positive signs of reform. First, he is now in his mid-20’s and showing signs of maturity. Second, she asserts, the evidence he gave in these proceedings demonstrates a high level of self-reflection and remorse for his crimes. Third, while it is conceded that in the past Mr Tran re-offended after undertaking rehabilitation courses, he now has the benefit of a structured, intensive “cutting edge” course, the VOTP. Fourth, she points out that Mr Tran can expect to receive support from his aunt who is now more able to devote time to guiding her nephew. Fifth, she argues that Mr Tran now appears to be quite aspirational and genuinely motivated to work and better himself.
Ms Watson representing the Minister contends that Mr Tran poses a high risk of reoffending. She points out that lengthy periods of incarceration have not tempered his misconduct; if anything, it has escalated. She argues that Mr Tran has operated on the fringes of society for most of the time he has lived in Australia and it is likely that he will continue to do so on his release. She contends that there has been no material change since Mr Tran was last released from custody and went on to reoffend within a matter of months. At that time, he had been incarcerated on four separate occasions; undertaken rehabilitation; been warned that his visa would almost certainly be cancelled if he reoffended, and had the benefit of support from his aunt. She also points out that the claims made by Mr Tran in these proceedings about his commitment to change, and remorse for his wrong doings, bear a “striking similarity” to those he made in 2007, when his visa was under threat.
It is notoriously difficult to determine whether a person who has offended in the past will re-offend. The task does not lend itself to a formulaic assessment. Nevertheless, in this case a number of factors point to Mr Tran posing a high risk of recidivism. Mr Tran has now been involved in sustained criminal activity over an extended period and the nature of his offending has become more serious over time. While none of the victims of Mr Tran’s crimes have sustained any physical injury, the use of machete (by an accomplice) in the most recent offence indicates that the potential for this to occur was very real. To date, neither repeated custodial sentences nor rehabilitation have had an apparent deterrent effect.
It may be that as a consequence of his current lengthy period of incarceration and his participation in the VOTP, Mr Tran now, as claimed, is genuinely remorseful for his crimes and has developed a degree of insight. If correct, this might operate as a protective factor. It is difficult not to be somewhat sceptical about Mr Tran’s claims given, as the Minister points out, that he has made similar claims in the past. Even if Mr Tran’s claims can be accepted, of itself, this development may not be sufficient to break his criminal trajectory. Indeed it may be that in 2007 he was genuinely remorseful for his crimes but this was not sufficient to deter him from returning to effectively the only life he has known since he was little more than a child.
It seems to me that at this point in time the risk that Mr Tran will go on to reoffend is a very real one. He is yet to complete the VOTP program which I accept is probably his best opportunity to date to break the cycle of offending. I will return to consider whether there are reasonable grounds to find that his risk of reoffending would materially reduce if he were to successfully complete the VOTP. At this point in time this Consideration weighs heavily against Mr Tran.
PRIMARY CONSIDERATION 2: AGE WHEN MR TRAN BEGAN LIVING IN AUSTRALIA
As Mr Tran came to Australia as a child of 11 years of age, this Consideration weighs in his favour.
PRIMARY CONSIDERATION 3: TIME RESIDENT IN AUSTRALIA
The Direction states (at cl 10.3(1)):
Reflecting the fact that the longer a period of residence in Australia, the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
About 40 per cent of Mr Tran’s 15 years in Australia has been spent in custody. He began offending within three years of arrival. Not surprisingly, given the relatively short time he has spent in the community, his ties are limited and consist of ties to his aunt, mother and two friends. This Consideration does not assist Mr Tran.
PRIMARY CONSIDERATION 4: INTERNATIONAL OBLIGATIONS
Mr Tran is not in a parental-type relationship with any child. There being no other relevant international obligations this Consideration has no application.
OTHER CONSIDERATIONS
The Direction requires that a number of “other considerations” be taken into account where relevant (cl 11).
Links to Australia
Mr Tran has no business ties in Australia. His only family ties are to his aunt and mother. As noted, he is no longer in contact with his mother.
Hardship
Mr Tran claims that he has no relatives or friends in Vietnam. That claim is corroborated by his aunt. Mr Tran claims that while he is fluent in spoken Vietnamese language, he can neither read nor write the language.
There can be little doubt that Mr Tran would suffer significant hardship if he were to return to Vietnam. He would be without the support of his aunt — the only constant figure in his life to date. In addition, he would be without the support that he would receive from the NSW Probation and Parole Service and Australia’s social security system. As I understand it, he would not qualify for any social security type benefits if he were to return to Vietnam.
Mr Tran suggested in evidence that his aunt needed him to care for her on account of a back condition. Her evidence did not corroborate that claim — although she did testify that she had sustained serious injuries during a motor vehicle accident. Nonetheless, there can be little doubt that if Mr Tran were to return be deported, the aunt, an Australian citizen, would suffer significant emotional hardship.
Mr Tran’s age and health
Mr Tran is relatively young and apparently in good health. It is not possible to exclude the possibility that he might return to illicit drug use. While there is no evidence before me about Vietnam’s health care system, it is reasonable to assume that as a developing country, a subsidised drug rehabilitation program is unlikely to be available to Mr Tran.
Level of education
Mr Tran has limited formal schooling. He has undertaken a number of educational courses while in custody.
Previous warning
As noted, Mr Tran has been formally notified on two occasions that further offending could result in the cancellation of his visa.
FINDINGS AND CONCLUSIONS
In deciding whether to exercise the discretionary power to cancel Mr Tran’s visa, I must take into account the “primary” and “other” considerations and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community from “unacceptable risks of harm”.
Of the primary considerations, the protection of the Australian community and Mr Tran’s age on arrival in Australia are especially relevant. The former weighs heavily in favour of cancellation, the latter heavily against. Also weighing in favour of cancellation is the relatively short period Mr Tran spent in Australia before offending and the fact that he has been formally warned that any further misconduct would likely result in his visa being cancelled. Weighing against cancellation is the hardship Mr Tran would suffer and the real emotional hardship his aunt will suffer if he were to return to Vietnam. The hardship he would suffer would be significant – his deportation will mean returning to a country where he has not lived for 15 years and has no contacts. While he has lived on the margins of society for most of his time in Australia, he has done so in the knowledge that he can always look to the support of his aunt.
I have given careful thought to whether a better and more informed decision would be reached if that decision were delayed until Mr Tran completes the VOTP at the end of this year. On the information available, it would appear that parole is unlikely to be recommended until such time as Mr Tran completes that program.
In any event, I am not confident that Mr Tran can be rehabilitated by an in-prison program alone, no matter how good that program is. It is asking a very great deal for any single program to reverse the damage done to a young person who has been living like Mr Tran since he was 11 years of age. Ms McGregor’s comment that Mr Tran was still in a “pre-contemplation” phase of rehabilitation, raises the real possibibility that Mr Tran’s participation in rehabilitation programs is motivated not so much by a desire to make serious changes in his life but by a pragmatic realisation that being able to remain in Australia depends on demonstrating some form of willingness to comply with social norms.
I am inclined to think that Judge Walmsley’s assessment of Mr Tran’s lack of remorse and empathy for his victims is more likely to be accurate than Mr Tran’s own self-assessment and that Mr Tran’s attitude is that he will say what he thinks will gain him advantage. There has been no evidence provided by Mr Tran, such as voluntary compensation or unprompted apology, that independently demonstrates any empathy on his part for his victims. He also chose to take the risk of ignoring the “last warning” he was given by the Department in 2007.
Even if his motivation towards rehabilitation is sincere in the structured and regulated environment in which he now resides, once released, maintaining a trajectory towards genuine rehabilitation will be very difficult for him due to his lack of education, professional or trade skills and a powerful law-abiding peer network. As much as I respect her desire to help her nephew, Mr Tran has been so long away from a close and supportive family environment that socialises him appropriately and is so enmeshed in a criminal peer milieu that I cannot place any real confidence in her capacity to control or discipline or guide him towards a law-abiding and productive life.
Mr Tran poses an unacceptable risk to the Australian community. That factor outweighs all others combined. I affirm the decision.
At my request after the hearing the Minister provided information about the services provided by the Australian government to persons deported. I understand that in appropriate cases the relevant officer may authorise the provision of resettlement assistance such as provision of short-term accommodation, cash and referral to various agencies. Given Mr Tran’s lack of ties to Vietnam I recommend that he provided with appropriate re-settlement assistance.
ANNEXURE A
DATE
OFFENCE
SENTENCE
Juvenile
06.11.00
Maliciously destroy or damage property
Pleaded guilty, no conviction entered, probation for 12 months
30.07.01
Supply a prohibited drug
Control order for 12 months, non parole period 3 months
Take & drive conveyance without consent of owner
Control order for 12 months, non parole period 11 months
Supply a prohibited drug
Control order for 12 months, non parole period 7 months
Unlicensed driver/rider
Pleaded guilty, no conviction entered, sentenced to rising of the court
Possess car-breaking implements
Pleaded guilty, no conviction entered, sentenced to rising of the court
02.07.02
Supply prohibited drug
Pleaded guilty, no conviction entered, community service order for 100 hours
23.07.03
Enter inclosed land not prescribed premises without lawful excuse
Fined $200
27.11.03
Unlicensed driver
Fined $650
27.02.04
Shoplifting
Pleaded guilty, no conviction entered, control order for 7 months, non parole period 4 m months
Shoplifting
Pleaded guilty, no conviction entered, control order for 4 months
Shoplifting
Pleaded guilty, no conviction entered, control order 3 months
Larceny
Pleaded guilty, no conviction entered, control order 3 months
Goods in personal custody suspected of being stolen
Pleaded guilty, no conviction entered, control order for 2 months
Breach of community Service Order
Pleaded guilty, no conviction entered, control order for 2 months
Goods in personal custody suspected of being stolen
Pleaded guilty, no conviction entered, probation for 12 months
Adult
22.12.04
Maliciously destroy or damage property
Imprisonment 3 months
Goods in personal custody suspected of being stolen
Imprisonment 3 months
Possess prohibited drug (2 charges)
On both charges: imprisonment 1 month
Enter inclosed land not prescribed premises without lawful excuse
Fined $100
22.04.05
Use offensive language in public place
Fined $250
Possess prohibited drug
Sentenced to rising of the court
01.06.05
Use etc. offensive weapon to prevent lawful detention etc.
Imprisonment 18 months, non parole period 9 months
Goods in personal custody suspected of being stolen (3 charges)
On each charge: imprisonment 3 months
15.08.06
Robbery armed with offensive weapon
Imprisonment 3 years, non parole period 18 months
22.05.08
Possess implements to enter/drive conveyance
Imprisonment 6 months
Being armed with intent to commit indictable offence – having previous conviction
Bond to be of good behaviour for 2 years
13.08.10
Aggravated break and enter commit serious indictable offence
Imprisonment 5 years, non parole period 3 years
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
...............................[sgd].........................................
Associate to Senior Member A K Britton
Dated 26 June 2012
Date(s) of hearing 14 and 15 June 2012 Date final submissions received 20 June 2012 Counsel for the Applicant Ms S Cirillo Solicitors for the Respondent Ms D Watson/Ms E Warner-Knight, Australian Government Solicitor
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