Vo and Minister for Immigration and Citizenship
[2007] AATA 1465
•25 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1465
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1186
GENERAL ADMINISTRATIVE DIVISION ) Re Thang Gia Uy VO Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date25 June 2007
PlaceSydney
Decision The decision under review is affirmed. ...................[sgd]...........................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – …visa-ex – applicant’s refugee visa cancelled – applicant does not pass character test – applicant has substantial criminal record including a ten year sentence for manslaughter and armed robbery – significant risk of recidivism perceived in this case – renewal of the applicant’s visa would send an undesirable message to non-citizens contemplating or involved in criminal activity - more than any other factor community expectations would be influenced by the gravity of the offences in this case – best interests of the child considered – role of de-facto father as against biological father – importance of the biological father in a child’s development – considerations of community protection and expectations outweighed the best interests of the children and the other considerations – decision under review affirmed.
RELEVANT ACT/S:
Migration Act 1958: ss 499(1), 499(2), 499(2A), 500(6B), 501(1), 501(2)(a) and (b), 501(6)(a) and (c), 501(7), 501G(1)
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780,
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
…
REASONS FOR DECISION
25 June 2007 Professor GD Walker, Deputy President Summary
1. The applicant, a citizen of Vietnam, first entered Australia in 1995 as the holder of a refugee visa. In 1998, he was sentenced to a term of 10 years imprisonment, with a non-parole period of seven years, for manslaughter and armed robbery. He also has a number of other criminal convictions.
2. On 20 March 2007, a delegate of the respondent decided to cancel the applicant’s visa on the ground that he did not satisfy the character test set out in s 501 of the Migration Act 1958 (the Act). The applicant sought review of that decision on 10 April 2007 by application to this tribunal.
Issue
3. As the applicant conceded that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the tribunal should exercise its discretion to affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.
4. At the hearing, the applicant was represented by Mr Nicholas Poynder of counsel, and the respondent by Mr Anthony Cox, solicitor of DLA Phillips Fox, Lawyers. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person. A Vietnamese interpreter translated for the applicant, Ms Nga Tran and Ms Ngoc Tran.
Relevant Law and Policy
5. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:
…
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
…
(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; …
…
6. “Substantial criminal record “ is defined in s 501(7)
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(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;
…
7. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
8. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Basic facts
9. The applicant Thang Gia Uy Vo was born in Saigon, Vietnam on 31 May 1975. His father was a helicopter pilot in South Vietnamese air force who left Vietnam for the United States, where he still lives, about a month before the applicant’s birth.
10. In 1990, the applicant left Vietnam by boat for Thailand. His mother stayed behind in Vietnam and still lives there.
11. In 1995, the applicant was sponsored to migrate to Australia and arrived on 25 August 1995 as the holder of a refugee visa subclass BA200. He has not travelled outside Australia since.
12. Less than a year after his arrival, the applicant began using and selling heroin and was charged with the possession and supply of prohibited drugs. No custodial sentence was imposed.
13. On 27 December 1996, prompted by a craving for heroin, he attacked a 49-year old woman, a Mrs Chang in Acacia Street, Cabramatta in the company of a confederate, for the purpose of stealing the victim’s handbag. There was a violent struggle near the middle of the roadway. Mrs Chang fell to the road, sustaining brain injuries from which she subsequently died. The applicant pleaded guilty to manslaughter and on 17 June 1998, was sentenced by Grove J of the Supreme Court of New South Wales Criminal Division to penal servitude for 10 years, with eligibility for parole on and from 7 January 2004.
14. In setting the sentence, Grove J took into account four other offences listed on a schedule. The first was for administering a prohibited drug (heroin) on 29 December 1996. He had purchased the drug using the proceeds of the robbery of Mrs Chang.
15. The second was for supplying a prohibited drug (heroin) on 31 October 1996 and the third for failure to appear on bail in respect of that charge.
16. The most serious was for the armed robbery on 29 December 1996 of a woman named Thi Lin Tran, aged 35, in Hughes Street, Cabramatta. The applicant attempted to pull her handbag off her from behind, and when she resisted used a knife he was carrying to cut the handbag strap and take the handbag, which contained $200 in cash and other items.
17. On 3 January 1997, the applicant was arrested when attempting to use Ms Tran’s credit card, which he then claimed that he had found. He was fined $250 on charges of larceny by finding and attempting to obtain a benefit by deception at Fairfield Local Court on 30 January 1997. After his arrest on the manslaughter charge, he admitted that he had not found the credit card and that he had in fact robbed Ms Tran.
18. On 30 January 2007, he was convicted of driving while under the influence of alcohol or other drug and was fined $500 and disqualified for six months.
19. On 29 September 2004, the respondent notified the applicant of his intention to consider cancelling the applicant’s visa under s 501(2) of the Act. On 26 October 2004, the applicant by fax addressed to the department (G p51) pointed out that he had experienced many difficulties in the past, spending five or six years as a refugee in Thailand before coming to Australia with no family, little English and no skills. He stated that while in jail for manslaughter he had undergone a life change and now realised that the best thing “is stay out free (sic), nothing can beat freedom”. He had learned a number of skills to ensure that after his release he could find employment as a forklift driver, welder or painter. He asked for a second chance “to be a good person as I always want to be”.
20. On 7 July 2006, the respondent further notified the applicant of his intention to consider cancelling the applicant's visa. The applicant responded by letter dated 8 November 2006 (G pp58-60), He stated that after being released on parole in April 2004 he had obtained employment and had been working as a welder and forklift driver for Thai AMX Mixer Repair, of Wetherill Park. He was now leading a more settled and worthy life than previously.
21. In the past, having no relatives or family, he had lived alone. Now, however, he was able to share a large part of his free time with his “foster-sister and her three sons”, aged 12, 6 and 3 respectively. His mother had raised his foster-sister Ms Thi Thanh Nga Tran (born 1969) since she was very young.
22. While on a visit to Vietnam in 2004, Ms Tran had met the applicant's mother and on her return to Australia made contact with him. Since then she had given him great support and encouragement. He found it beneficial to be involved in the lives of his “sister” and “nephews” and asked to be given a chance to lead a normal life. He promised that he would never again offend.
23. In a supplementary statement (G p78) apparently faxed on 17 November 2006, the applicant wrote that the fatal assault was “the very first time that I committed a crime”. Although he had no intention of causing the victim’s death, he accepted his responsibility and by serving his sentence had “paid my debt to society”.
24. While in prison he had thought a great deal about his actions and regretted them deeply. He was very fond of his “nephews” and wished to be able to assist his “sister” in bringing them up to be good citizens. He explained that his mother and elder brother still live in Vietnam. His mother is old and in poor health and he has from time to time sent money to assist with her living expenses.
25. He added that he is now able to contribute to Australian society through working and paying tax. He was no longer a burden to society because he was no longer relying on social security benefits (G p78).
26. In both of those letters, the applicant consistently referred to Ms Tran as his “sister” or “foster-sister” and made no reference to any de facto relationship.
27. Ms Tran also wrote to the department in support of the applicant's case (G p61-62). In her letter of 16 November 2006, she related how the applicant’s mother gave her his contact details:
…
She asked that I contact him when I return to Australia, and that I look after him, as a big sister should, in her stead, because he was very lonely and unhappy, having no close relative for emotional support.
…
28. On her return to Australia she visited the applicant and counselled him, saying that he should start to rebuild his life and his future.
29. Through his visits to her, he had seen the hardships that she had to contend with when seeking to raise her children on her own. The applicant was now working very hard and spending much of his free time helping her with them. He had supplied her children with a good role model, “an uncle” who could be there for them when they need him. She asked that he be given a second chance to contribute positively to society.
30. Throughout her letter Ms Tran referred to the applicant as “my brother Uy” and made no reference to a de facto relationship.
31. On 20 March 2007, a delegate of the respondent made a decision to cancel the applicant's visa (G pp1-4).
The applicant’s evidence
32. At the hearing, the applicant gave evidence with the assistance of a Vietnamese interpreter. He adopted his statutory declaration of 15 May 2007 (Exhibit A10) in which he stated that when he was detained by immigration officials on 4 April 2007, he was living with his de facto spouse, Ms Tran, and her three children at 1 Jasmine Crescent, Cabramatta.
33. After his father had left for the United States in 1975, he was brought up in Vietnam by his mother, who entered into another relationship. He did not like his stepfather. His paternal grandparents, knowing of his situation, arranged for him to leave Vietnam by travelling to Cambodia on foot and then reaching Thailand by boat. While in a refugee camp in Thailand, he was introduced to opium through some friends he had made and used it for a few months to escape from reality in the camp.
34. After he was sponsored to come to Australia in August 1995, he initially stayed in Adelaide but then relocated to Sydney where he shared accommodation with others. He knew little English and found it difficult to obtain employment other than casual work.
35. In about mid-1996, he was approached at the Cabramatta shops and was offered heroin. He did not think he would become addicted to it, having not become addicted to opium. He succumbed quickly, however, and began to sell the drug to others to cover his living expenses and to cater to his heroin addiction. In late 1996, he was arrested and charged with possession and supply of heroin. “However these events had occurred over 10 years ago and so I am unable to comment on these charges” (at para 23). Fairfield Court records were unavailable because the court building is currently being refurbished. All he is able to say was that he was not sentenced to imprisonment on those charges.
36. By that time, he was using heroin several times a day and needed money. On 27 December 1996, he approached Mrs Chang intending to steal her bag for money with which to buy heroin. “The woman resisted and there was a struggle between us when I grabbed her bag. Everything happened very quickly. I did not hit the woman; I do not remember touching her body and I did not notice that she had fallen to the ground and hit her head. After I got hold of the bag, I ran and later used the money in the bag to buy heroin” (at para 30). He later learned that she had died of injuries sustained when she fell to the road.
37. Two days later, he again needed money to buy heroin. When he saw a group of women walking on Hughes Street, Cabramatta, he approached and tried to pull a handbag from one of them. There was a struggle and he used a knife that he had on him to cut the bag loose. He then ran away with the bag. He was later arrested when he attempted to use the woman’s credit card.
38. While in prison, he tried to quit drugs but found it very difficult and on 25 November 1997, he tested positive to drugs in his urine. Nevertheless, he was determined to begin a fresh life when he was released and undertook courses on welding, fabrication techniques, life skills and relapse prevention. He was released on parole in April 2004 and had complied with his parole conditions. In June 2005, he undertook a Vietnamese Offenders Drug and Alcohol program, which he successfully completed in August 2005.
39. After Ms Tran made contact with him, he saw her often. She counselled him, bought cooking utensils for him and regularly came to help clean and tidy his home. She introduced her three children to him and they got along well. “Seeing that I rarely [sic] had an appetite, Nga (Ms Tran) cooked and brought food from her home to mine every day and together (Nga, me and her three children) we would eat together. Nga gave me sense of family life; a sense that I am worthwhile and cared for” (at para 45).
40. Propinquity developed and in October 2005, his relationship with Ms Tran became intimate.
41. He had two relapses into heroin use, one in late 2005 and the other in early 2006. The former episode began when he heard that his mother was seriously ill. He realised the danger of relapsing into heroin and sought subutex treatment at the Scott Street Clinic in Liverpool, and later at the Auburn Drug Detoxification Clinic for about five and a half weeks. Nevertheless, he did succumb “on a couple of occasions”, but refrained from informing Ms Tran.
42. At that time he began visiting her home more often to care for her and her children, and also stayed overnight regularly. Early in 2006, he began to stay and sleep over at their house every day, occasionally returning to his apartment in Kurrajong Street, Cabramatta where his flatmate continues to live, to collect some of his belongings. He could not move everything into Ms Tran’s home as there was insufficient room. “Therefore, although I live with Nga and her children at 1 Jasmine Crescent, Cabramatta, I continue to rent the unit in Kurrajong Street, Cabramatta with my flatmate as some of my belongings are still there and pay a small portion of the rent” (at para 53).
43. Although in an intimate relationship with Ms Tran, he had in the past referred to her as his foster-sister even though they are de facto partners. That was because Ms Tran did not want her children to know too much about the relationship as she felt that they are young and might not fully understand it.
44. Ms Tran soon discovered that while undergoing treatment at the Liverpool and Auburn clinics, he had nevertheless used heroin on a couple of occasions. She was very upset: “She cried, banged her head against the wall and threatened to kill herself if I did not stop taking drugs” (at para 55). He therefore decided to enter a naltrexone implant program on 24 January 2006, but before the operation he did smoke a small amount of heroin, thinking it would be the last time, as he had decided to receive the implant. A few days later he decided to drive while still affected by the drugs associated with the implant:
…
On 26 January 2006, I was very hungry and wanted to drive not far from home to buy some food. I felt drowsy at the time due to the drugs associated with the implant; however I did not think that it would be a problem (at para 57).
…
45. He was involved in a car accident and realised that he had been foolish to drive in that condition.
46. At his parole meeting in July 2006, his parole officer told him that the police were looking for him in relation to the accident. He attended Cabramatta police station where he was told that he had failed to attend court in response to a summons. He was subsequently fined $500 and disqualified for six months for driving under the influence of alcohol or other drug.
47. He continued to work, earning about $500 per week after tax. “Nga manages my finance. I give all the money that I earn from work to Nga. I contributed to rent, food expenses, help Nga with payments for her children’s educational expenses as the money that she receives from Centrelink is not enough, pay for Nga’s eldest son’s guitar playing tutorials, help with the utility bills if required and also send money to my mother in Vietnam” (at para 59).
48. Since the implant, Mr Vo states, he has been completely drug free, and until being detained he was living very happily with Ms Tran and the children. His wish is “to be able to live together with Nga and help her bring up her children more than anything” (at para 67). He believes he is fully rehabilitated and having been in Australia for 12 years, and away from Vietnam since 1990, he believes he would not be able to adapt to life in that country. His mother and brother would not be able to help him with accommodation or finances as they are both poor and do not own their own houses. He also believes that Ms Tran and her children would have a very difficult life in Australia without him here with them.
49. At the hearing, the applicant explained that after his release from prison he lived for several months at Kurrajong Street, moving to Broomfield Street, Cabramatta, in mid-2006. The apartment, or the building in which it is situated, belongs to Ms Tran’s sister.
50. The applicant said that before he was detained, he had been living with Ms Tran at Jasmine Crescent for over a year. His belongings, including clothing, documents, refrigerator, cooking utensils, music equipment and bathroom items were left at Broomfield Street, and he continued to pay the rent of $150 per week until he was detained. He had not moved his belongings to Jasmine Crescent because there was insufficient room there. When it was put to him that $150 per week was a great deal to pay for storage, he replied that it was, but he had to pay it. He did not want to move his things somewhere else or sell them. His belongings were, however, moved to Jasmine Crescent several days after he was sent to Villawood.
51. The applicant said he had started staying permanently at Ms Tran’s residence at Jasmine Crescent about the end of 2005, spending six or seven nights per week there. After work he would go to the gymnasium, then to Jasmine Crescent where he would shower and shave, in the evening. He kept his shaving gear at Jasmine Crescent. He would breakfast at work and have dinner at Jasmine Crescent. He would visit the Broomfield Street apartment on Saturdays or Sundays, not usually during the week, in order to check on things or, he added, somewhat enigmatically, if he was having problems with Ms Tran in relation to their sex life or the children. He would collect his clothes from Broomfield Street, or return there if he needed some special outfit. The Broomfield Street apartment was not the subject of a lease, but of an informal arrangement with Ms Tran’s sister.
52. When detained, he was paying only one rental, the one for Broomfield Street. Ms Tran paid it on his behalf as he gave all his wages to her.
53. He acknowledged that Ms Tran is receiving Centrelink payments, adding that they are for the children and that he is not sure whether she receives any other payment. He had never given his income details to Centrelink.
54. Asked about paragraph 59 of his statutory declaration (Exhibit A10) in which he stated that he gave Ms Tran money for rent, he denied that it related to her apartment and said it was only for Broomfield Street. He did not pay the children’s Catholic school fees but gave Ms Tran money for their educational purposes when it was needed. He did not know how much the fees amounted to and did not know the date or month of birth of any of the children.
55. When asked about his interview with the psychologists in jail, he said that Dr Strum had come to see him and he had told him about his drug history, including his use of opium in Thailand. He said he could not recall telling Dr Strum that he had stopped taking drugs for a year before he was arrested and could not recall how long before the homicide he had been taking drug continuously. He had, however, quit for a period of several weeks but had resumed before the homicide. When it was put to him that Dr Strum said he had started on narcotics again because he was “bored with life”, he agreed but said it was because he had no income and no job.
56. He admitted that in his letters to the department in 2006 he had said nothing about being in a de facto relationship and that he had referred to Ms Tran as his sister or foster-sister. He also acknowledged that his May 2007 statement contained the first reference to a de facto relationship.
Ms Tran’s evidence
57. Ms Nga Thanh Thi Tran, in her oral and written (Exhibit A11) evidence stated that she was born in 1969 in Cambodia but her family moved to Saigon when she was a few months old. She was sponsored with her mother to come to Australia on family reunion grounds in about 1985 and became an Australian citizen in 1987. She has three children as a result of two different de facto relationships.
58. While in Vietnam, she was fostered by the applicant’s mother and treated as if she were her own daughter. When she came to Australia in 1985, she had no contact with the applicant’s family, but after her visit to Vietnam in 2004, she took steps to find Mr Vo and located him just after he had just been released from prison. She decided to help him, cooking food to bring to his home and helping him to clean it and tidy it. She encouraged him to obtain employment and to spend time with her children, with whom he developed a strong rapport.
59. Their relationship became intimate in about October 2005 and the applicant often spent the night at her home.
60. When the applicant relapsed into heroin use in November 2005, she encouraged him to seek help at the Liverpool clinic and later at the Auburn drug detoxification clinic.
61. He moved in with her and the children in early 2006. He was a good partner to her and played the role of a father figure for the children. He also relied on her to manage his finances. The applicant contributed to the payment of rent, food expenses, her children’s educational expenses and tutorials, and sometimes with utility bills. Whenever he could, he sent money to his mother in Vietnam.
62. In about January 2006, she discovered that he had again relapsed into smoking heroin. She was upset, angry and banged her head into the wall, threatening to kill herself, if he continued to use the drug. On 24 January 2006, he entered the naltrexone implant program. She understood that after the implantation Mr Vo would feel drowsy and the drugs used to sedate him would take two or three days, or more, to metabolise after the procedure.
63. About two days after the implant, the applicant felt hungry and took the car to go and buy some food. He was still very much under the influence of the drugs and she believes that he did not know what he was doing at the time. He was involved in a car accident and later was fined and had his license suspended.
64. Ms Tran stated that in their letters to the department in November 2006, they had referred to each other as foster-brother and foster-sister although they were in a de facto relationship. Their reason for so doing was that “We felt that my children were too young to fully understand our relationship and we did not want them to feel insecure in any way” (Exhibit A11, para 33). “Uy and I are in a genuine relationship with one another and we plan to get married some time in the future” (at para 43).
65. Ms Tran believes that the applicant has “already paid for his crime” and that he is a changed man. She says he is sincerely regretful and remorseful for what he has done and for the consequences of his actions.
66. At the hearing, Ms Tran reiterated that while she and the applicant had described themselves as brother and sister in their communications with the department in November 2006, they were already living as husband and wife but did not want the children to know, adding that she is older than the applicant.
67. Asked why she did not want the children to know, she replied that she did not want them to think she was not looking after them. When then asked what her letter to the department of 16 November 2006 (G p61) had to do with the children, she did not reply but said that they looked after the children, and the applicant was not like a brother.
68. Ms Tran has not worked for six or seven years and has been receiving Centrelink single mother payments for about six years. Although she did not give exact details of her welfare regime, it would appear that she has been in receipt of unemployment benefits as a single person for about four years continually, and is still receiving those payments. She had never told Centrelink that she was in a de facto relationship because he started to live with her in 2006 and had given her money only for the children’s education and music lessons. She did not receive any money for herself from him and therefore did not have to inform Centrelink.
69. In response to a question whether Mr Vo had ever given her his entire wages, she replied that he gave her money for food for himself and money for the children, but not for herself.
70. She is also receiving payments for two of the children through the Child Support Agency, but she has never told that agency that she is in a de facto relationship.
71. In relation to the living arrangements, Ms Tran said that her sister rents the Broomfield Street house to someone else. Mr Vo had moved his belongings into an apartment there but had stayed with her. Currently, nobody else was renting the apartment and the applicant kept paying the $150 per week to help her sister. He used the apartment to store his belongings because there was no room for them at her house. They would go to Broomfield Street to clean up every Saturday or to sleep there on Saturday afternoons, but returned to her place at night. When asked why she needed to clean the apartment every Saturday if the applicant was not living there, she said that there were pigeons there and she needed to clean up after them.
72. She repeated that the applicant was not paying any rent for the Jasmine Crescent premises but was giving her money only for food and for the children. He had also bought some medication for her mother who, she added, is now helping her with the household and children.
Other supporting witnesses
73. Mr Ngoc Lai Phong Le gave a character reference for the applicant (Exhibit A12) in which he said he was introduced to Mr Vo when he was released in April 2004.
74. As he was working with young people and youth at risk, Mr Le had spoken with and guided the applicant in his transition to life in the community. Throughout his interactions with him over the past two years, Mr Le had found the applicant to be a kind, considerate, courteous and hardworking person, who has many regrets about the mistakes he has made during his youth.
75. He had observed him gradually becoming more settled and confident. “Although he does not have intermediate [sic] relatives, he has his foster-sister Thi Thanh Nga Tran and her three sons, who he takes care of emotionally and financially”. In Mr Le’s view, the applicant is reformed and is striving to contribute to society. He is an example of the successes of the rehabilitation system.
76. At the hearing, Mr Le explained that the applicant is a friend of his brother-in-law, and he regards him as a younger brother. He saw him about once a week for 18 months for a couple of hours or up to half a day at a time. He had spoken of his future plans, employment, TAFE courses, Ms Tran and his mother.
77. Mr Le does not know Ms Tran well, but has met her a couple of times. The applicant did not really discuss the intimate details of his personal life such as his relations with a woman. He had told Mr Le that she was his foster-sister and that he learned to look after her and the children as if they were his own family.
78. Mr Le had made a similar statement in November 2006 (G pp63-64), again referring to Ms Tran as the applicant’s “foster-sister”.
79. Ms Ngoc Tran, managing director of Thai AMX Mixer Repairs Pty Limited of Wetherill Park, described the applicant's work performance (Exhibit A13). She wrote that the company has employed the applicant as a full-time welder since 2005. He is a valued employee and they have kept his position for him upon his release. They find him to be hardworking, reliable, and skilled at his job. Finding a replacement would be very hard, as it takes a great deal of training to attain the level the applicant has now reached.
80. At the hearing, Ngoc Tran said that the applicant is paid about $31,000 to $32,000 per annum, including some overtime. The company employs 10 welders permanently, and the applicant does basic welding on mixer drums. When it was put to her that it would not be hard to replace the applicant, Ngoc Tran replied that the company prefers to recruit experienced welders and the good ones were able to choose between employers. Also many did not wish to work, preferring to live on Centrelink payments. The applicant already knew how to weld when they recruited him, and it took five or six weeks to train him.
81. A number of the applicant’s fellow-workers also attested to his reliability and willingness to work (Exhibit A6).
82. Father Pat McAuliffe of Sacred Heart Parish, Cabramatta, wrote to say that the applicant had attended Mass each Sunday with Ms Tran when they lived together at Jasmine Crescent. He appeared to be a sincere person who wished to make a new life and should be a good citizen in the future (Exhibit A7).
83. The applicant tendered a statutory declaration made by Mau Thi Nguyen, Ms Tran’s mother (Exhibit A3). Ms Nguyen, who is an Australian citizen, wrote that “When I am in Australia, I live with my daughter Tuyet in Brisbane and occasionally travel to Sydney to visit Nga and three grandchildren” (at para 3). She did not say how much of her time she spends in Australia.
84. She visited Sydney on 16 April 2007 when her daughter was greatly upset over the applicant’s detention at Villawood.
85. Ms Nguyen outlined her daughter’s stressful past relationships and went on to describe her involvement with the applicant:
A couple of years ago, Nga told me that she had been contact [sic] with Uy and sometime after, I also learnt that Nga and Uy had established a relationship with one another. Nga told me that Uy was very helpful around the house; that he cared and loved her children and treated them like his own; that he was very hardworking and also loved and cared for her. I was very happy and feel relief for Nga as she had finally found someone who she could depend on. (at para 7).
86. She described in detail his contributions to the household and his relationship with the children. “It hurts me very much to see my daughter Nga and Uy apart as I know that they are very much in love” (para 14). She believes her daughter and grandchildren need the applicant in their lives and says that he has duly paid for his offence by serving the jail sentence.
87. Mr Huy Tran, vice president of the Vietnamese Community in Australia (NSW), wrote an undated reference for the applicant (Exhibit A14) stating that he was aware of the applicant's criminal convictions but believed he had repaid society for the debt that he owed. Removing the applicant would be unnecessary and unacceptable, in his view, and could lead to much stress and anxiety for his de facto, Ms Tran, and her children. “I also believe that the deportation of Mr Uy Vo would undermine Australia’s reputation as a country that gives people a second chance in life”. Since his release in 2004, he had contributed to Australian society by working and paying his taxes. “He is also the provider for a family that is desperately in need of a loving husband and father figure”.
Psychological and medical evidence
88. Mr Van Son Nguyen is a registered psychologist who has been employed by TAFE as a counsellor for 20 years. About 95 percent of his work consists of vocational, educational and personal counselling for TAFE students, but he also has a private practice that takes up less than five percent of his working hours. His private work relates to offenders, literacy and educational matters. He is a registered psychologist but not a clinical psychologist.
89. In his report (Exhibit A4), Mr Nguyen stated that the applicant had been referred to him for psychological assessment before and after his manslaughter conviction in 1997.
90. Much of the report is taken up with relating the applicant's background, criminal history and rehabilitation efforts as told to him by the applicant. He considers the applicant a reformed person with a new sense of direction and responsibility and thinks the likelihood that he will re-offend is minimal. The main factor in his reform and rehabilitation is his current relationship with Ms Tran, “a long time fostered sister turned de facto partner”. Strong bonds had developed between the applicant and her children. Mr Nguyen believes that visa cancellation would have a devastating affect on the applicant, as he left Vietnam when he was 15 and lived apart from his mother and brother who are struggling to fend for themselves, he has no other relatives or friends in that country. He believes it is in the children’s best interests that the applicant should be allowed to remain in Australia.
91. In his conclusions, Mr Nguyen said that Mr Vo “presented as a very depressed person who was coping poorly with post-traumatic stress disorder (PTSD)” (at p9). A Depression Anxiety Stress Scales test showed him to be in the severe range and at high risk of developing increased levels of depression. It does not appear that Mr Nguyen administered any other tests.
92. At the hearing, Mr Nguyen said that he saw the applicant once before writing the report, for an hour or an hour and a half and also interviewed Ms Tran. He did not interview the children but saw the applicant interact with Ms Tran and the children in the visiting area for about half an hour.
93. Mr Nguyen said he had based his diagnosis of PTSD on his observation but conceded that as he was not a clinical psychologist he was not qualified to make such a diagnosis. Nevertheless, he said, he could make an observation. In his view, the traffic offence experience has stressed him, and although his condition was not the same as PTSD, given his situation over the years, he had found a new purpose in life but had suffered a trauma as a result of the accident.
94. The depression test he had administered was based on a series of 10 questions. It was a short test designed to help a psychologist to evaluate a person. He was not able to administer a detailed test.
95. Asked how he was qualified to predict the applicant's chances of recidivism, he did not at first answer the question but said that the applicant had changed his treatment and that Mr Nguyen had been able to interview and observe him. When the question was repeated he conceded that he had no special qualifications that would enable him to make such a prediction. In re-examination he also conceded that he had no prior experience with predicting future criminality and had worked with only a minimal number of criminal cases.
96. Two reports by Dr D.Y.K. Tan, one dated 23 October 2006 and the other of 16 May 2007, were admitted into evidence (Exhibit A5). In the earlier report, which appears to have been prepared for the applicant's lawyers in connection with the charge of driving under the influence of a drug, Dr Tan explained that before undergoing naltrexone therapy, the patient must first undergo opioid detoxification. Naltrexone is an opioid antagonist that binds to the opioid receptors, thereby blocking the desired effects of the drugs. The opioid blocking effect of a naltrexone implant normally lasts for about three months.
97. Dr Tan noted that on the day of the implant, the applicant had used heroin six hours before the procedure. It usually takes 48 to 72 hours for heroin to be metabolised, and its detection on 26 January 2006 would be consistent with that fact. It would also be futile for the applicant to use heroin after the implant, because he would not feel its effects because of the naltrexone blocking effect.
98. The report states that the implant does not release drugs of the type that were set out in the fact sheet. They were from the medications used during his rapid induction onto naltrexone. After the procedure, the patient would be sent home with his carer or support person. The patient would be drowsy and lethargic during the post-detoxification period for about two to three days.
99. Dr Tan did not state whether or not he had advised the applicant not to drive during that period, but did have this to say:
…
It was indeed foolish for Mr Vo to drive a vehicle under his circumstances but unfortunately, he realised it a bit too late. He told me that in retrospect, he should not have driven, instead, he should have asked his partner to buy food for him because he was hungry, instead of driving himself (p2).
…
100. Urinalyses from March 2006 to October 2006 showed that he had remained abstinent from opioids and other illicit drugs for nine months. In his brief report of 16 May 2007, Dr Tan noted that since his treatment in January 2006 the applicant had not relapsed.
Application of the Law and Findings of Fact
101. As was stated above, normally the first issue for me to decide would be whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record. The application of the character test is by reference, first, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
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The concept of “good character” in section 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 section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
…
In Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
…
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
…
102. On the other hand, 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 (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at p781).
103. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. As the applicant has conceded that he does not pass the character test by reason of his substantial criminal record within ss 501(6)(a) and 501(7), I must consider whether to exercise the discretion in s 501(1) not to cancel the applicant’s visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
104. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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Decision-makers 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.
…
105. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
…
Paragraph 2.4 explains:
…
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
…
106. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
107. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
108. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(f) that manslaughter and other crimes of violence against persons are to be treated as very serious, as are armed robbery (para 2.6(e) and the selling of illicit drugs (para 2.6(a)).
109. In 1998 the applicant was indicted for murder, but a plea of guilty to manslaughter was accepted in satisfaction of that count. He was also convicted for an armed robbery that he committed two days after the homicide. To give a complete picture of his pattern of offending at the time it is helpful to set out Justice Grove’s sentencing comments:
The prisoner has pleaded guilty to manslaughter and the Crown has accepted that plea in discharge of indictment for murder. The prescribed maximum penalty for manslaughter is 25 years penal servitude.
On 27 December 1996 the prisoner and a man named Tran in the company of others from time to time during the day, were loitering in the vicinity of blocks of residential flats in Acacia Street, Cabramatta.
The prisoner craved or sensed a desire for heroin. He was a user and probably in a stage of addiction which he later told police he wished to quit. On the day in question he had no money. Tran had a little money but the prisoner might have been unaware of this. He decided, if I may use the convenient argot, to snatch a handbag.
From his position he surveilled passers by as potential victims. Excursions towards female pedestrians were observed. These I regard as events which, for reasons of the prisoner's own, did not result in a consummated crime. Witnesses described him as appearing agitated.
At about 5.15pm the eventual victim, a 49 year old female, walked to her car which was parked at the kerbside in front of one of the blocks of flats. She had obviously been shopping and had a handbag draped over her head and shoulder. She was attacked by the prisoner and her resistance to his aggression resulted in a struggle. I am not satisfied that the prisoner struck a specific blow such as the elderly witness Qui Trieu thought he saw, but I am satisfied that the prisoner's attack caused the victim, Mrs Chang, to fall to the ground near the middle of the roadway to which the struggle had gravitated. The blow to the head on the road surface injured the brain and its protective structures. Surgical intervention was unsuccessful and Mrs Chang died on 2 January 1997.
The prisoner had succeeded in obtaining the handbag. He went to a flat in which he was residing with Tran and one other. He decamped through a fence hole to make his way into Church Street which was parallel to Acacia Street to the east of it.
Tran was arrested on 7 January. Eventually he was dealt with in the District Court on a charge of being an accessory after the fact to robbery. He was involved in the disposal of the handbag. Sentence imposed upon him is irrelevant to that which must be imposed on the prisoner.
The latter told police that it was the night before his own arrest on 8 January that he learned that Mrs Chang had died. Whilst I am prepared to accept that claim on its face, I am satisfied that he had an appreciation of the potential serious consequences of his action as was manifested by his arranging for a friend to cut his long hair, an identifying feature which, as it turned out, was remarked upon by several witnesses.
In a history given to a doctor which I will later quote, there was a claim of not touching the victim's body. I have been asked to take into account four matters scheduled to a form 1 under the Criminal Procedure Act and I will do so.
The first in time is the supply on 31 October of a small unspecified quantity of heroin. The second is failing to appear off bail in respect of that matter. The third relates to self-administration of herein purchased with money stolen from Mrs Chang's handbag. The fourth, and by far the most serious offence, is an armed robbery at Cabramatta on 29 December, that is two days after the attack on Mrs Chang.
I am informed of these facts. At about 7.40pm Thi Lin Tran, then aged 35 years, was walking in Hughes Street in the company of her mother, sister and niece. The prisoner approached these women from behind and attempted to pull a handbag which the victim was carrying away from her. She resisted. He used a knife he was carrying to cut the handbag strap after which he threw the knife to the ground and ran off with the bag which contained $200 in cash and other items.
On 3 January the prisoner was arrested in possession of Bankcard in the name of Thi Lin Tran which he was attempting to use. He then claimed that he had found the card and was charged with larceny by finding and attempting to obtain a benefit by deception. He was fined $250 on each of these charges at Fairfield Local Court on 30 January. He had been released on bail on 3 January in respect of those matters but was re-arrested for what is now the principal matter on 8 January.
The prisoner, by his request that I take the offence into account, admits now that he was the robber and of course did not find the card in the street.
The prisoner was born on 30 May 1975 and is therefore now aged 23 years. His only prior convictions are those two offences which I mentioned which led to the convictions in the Local Court on 30 January last year.
He is a single man. The only detailed source to which I can turn for information about him is a history which he himself gave to Dr Strum, a consultant psychiatrist, who saw him in gaol on 15 May last, I gather at the request of his legal representatives who tendered the relevant report.
The history taken by Dr Strum is recorded as follows:
Mr Vo was born in Vietnam where he lived to the age of 15. He then went to Thailand. He said his father had been a helicopter pilot in the South Vietnamese Airforce and had gone to the United States of America.
Mr Vo said he had just been born at that time and grew up with his mother who had another man in her life who beat him. Mr Vo said that there was no contact with his father and he felt abandoned.
He said he felt hatred for his father. As to his mother he feels that his mother felt sad about what happened. He said both parents abandoned him.
Mr Vo said his stepfather was a police officer. There was no sexual abuse. Mr Vo said he had two brothers, one brother died when born and the other lives in Vietnam but he has no contact with him.
Mr Vo said his father's side of the family arranged for his escape to Thailand. Mr Vo said he wrote to his mother from Thailand but she never replied so he lost contact with both parents.
His paternal grandparents went to the United States in 1991 and he has lost touch with them. He is therefore totally without family.
Mr Vo wasn't sure of the level of schooling he reached in Vietnam. He said it may have been the equivalent of our Year 9.
Mr Vo came to Australia in 1995 at the age of about 20 and has had no further education here.
In Thailand Mr Vo told me he had done a course in English and a trade course as a welder. He said he is a qualified welder but there is some doubt about the actual skills he acquired. Whether it was a true trade course or not, Mr Vo could not find work in Australia as a welder because his certificate wasn't recognised here. He also had language problems. In Australia Mr Vo said he worked in factories in the garment industry but it was illegal and irregular work.
Mr Vo said he had spent some five years in Thailand and worked at odd jobs labouring at shop work. He told me he lived in a refugee camp and was arrested for being outside the camp buying things outside the camp and selling them inside. He was imprisoned for a few months. He denied he was dealing with drugs. He admitted to taking opium but denied taking heroin.
He said he was in the refugee camp in Thailand for some years because he had no sponsor and he was scared that he would be sent back to Vietnam. There were no illicit sexual activities. He made friends at the camp but they were not close. He had one or two girlfriends. Mr Vo had his first girlfriend and first sexual experience at the age of about 15. For about two years he had a long term relationship with a girl in Thailand. He has not had a long term relationship in Australia. He told me he finds sexual relief with prostitutes.
Mr Vo told me he had a lot of worries in Thailand. He had fallen off a vehicle and thereafter suffered from headaches but received no psychiatric treatment. He suffered from nightmares about escape on a boat. There were no pirates in the nightmares but it was a hard time at sea. He said he suffered from depression, sleep disturbance and nightmares. There were no flashbacks and no suicidal thoughts. He said that in the camps he was subjected to violence and defended himself. He said he never attacked anyone and was never charged with assault.
Mr Vo said he had no real criminal record in Australia. He told me he has been charged with one drug offence and is awaiting to go to court concerning that matter.
I interpolate that is obviously the matter I am taking into account on the schedule. To return to the history given to Dr Strum then, I continue:
As to his general health, Mr Vo said he has suffered from no serious health problems other than the headaches. He has never been to a psychiatrist and has received no treatment. In Australia Mr Vo said he lived with a friend in a room and other people lived in the house. He said he has no close friends in Australia only the co-accused.
Again I interpolate that is obviously a reference to Mr Tran. I continue:
He said he is a loner and lonely. He said he lives a very depressing life and lives that daily.
When he first came to Australia he said he did some work for a short time. He denied any money he had came from trafficking in drugs. He said he is not a professional bag snatcher. He said he snatched the bag only after he had been charged with the drug offence, saying he had only snatched bags on two occasions. He said he snatched the bags by himself and no other person played a role in it. He said he followed women to rob because he needed the money for drugs.
As I have said Mr Vo told me he started taking opium in Thailand and stopped taking the drug when he came to Australia. He had been off drugs only for a year before he was arrested. He said he started taking drugs again because he was bored with life. He said he was taking heroin and sleeping pills and it was costing him about $170 per day. Mr Vo denied breaking into houses. He was not sure if he had used any weapons in any attack. He said he has very little recall of the incident because he had been taking Valium and Rohypnol.
Mr Vo spoke about the woman who died. He recalled he had snatched her bag but did not know that she had fallen. He said they both kept pulling at the bag in the middle of the road. He said he did not drag her in front of the car and thought he only dragged her on the footpath. Mr Vo said no stolen vehicle was involved. He said he did not hit the woman and he did not touch her body. Mr Vo said he was not on drugs at the time. He said he used the money which he obtained in the robbery to buy drugs.
On the day of the offence, 27 December, Mr Vo told me that he is not sure whether there was anything in particular affecting him. He said he felt depressed and frustrated all the time. He cannot recall his sleep pattern but he said he would stay up late at night. He did not have a good aptitude. He was not suicidal. He said it was rare for him to have a good day. There were no auditory hallucinations, no ideas of reference and no psychotic phenomena.
Dr Strum concluded that the prisoner's actions derived from a need to buy drugs, not from any psychiatric illness. I agree.
Sensitive as I feel I should be to the tragedies of the prisoner's life, I must also not lose sight of the consequences of his action being ultimately the extinction of Mrs Chang's life in its entirety. Nevertheless I am moved to comment that it is hardly surprising that a mere youth bereft of any real family or community support, should drift into circumstances in which he became an offender.
Punishment must reflect the offender as well as the offence, and I do not believe the prisoner should shoulder all of the blame for his dissent into criminality. There is no evidence from any source that he received any training or example which might have set him upon an acceptable path to a decent life.
I accept that he did not intend to kill Mrs Chang but I do not ignore the seriousness of his intention to rob her and his willingness to engage in an apparent struggle with her to gain his objective.
I accept in the prisoner's favour that he made full admission of his involvement to police when interviewed on 8 January 1997. In particular, I have viewed that part of the police interview video (now exhibit 2) wherein he used some dramatic language to offer his life in exchange for that taken. I am conscious the effect may be coloured by translation from the Vietnamese but I accept what was said as conveying some genuine contrition. That perception is fortified by the offer of a plea of guilty to manslaughter at effectively the earliest practical opportunity.
It is necessary for me to give consideration to special circumstances within the meaning of that phrase in s 5(2) of the Sentencing Act. As the history which I have set out shows, the prisoner is isolated from family and bereft of close friends. His previous loneliness will be compounded by the loneliness of prison. Assistance of skilled officers such as those of the Probation and Parole Service will be essential to any successful re-introduction of the prisoner to society after his term of imprisonment and I conclude that a longer proportion of additional term than application of the statutory formula to the total sentence would produce should be imposed for that purpose.
The special circumstances which I find are implicit in the foregoing. Counsel acknowledged that the crime of manslaughter covers a range of culpability of considerable width and submitted that the present case fell within the lower realms of that range.
Accepting as I do that the death was unintended. The offence must nevertheless be assessed in the context of the serious aggravating circumstance that it occurred in the course of the prisoner's aggression against the victim for the purpose of robbery.
I should not lose sight of the fundamental circumstance that innocent life has been taken. In addition, although the first three matters on the schedule may be treated as relatively minor, the armed robbery committed two days after the prisoner had engaged in a violent struggle to snatch a handbag cannot be set at naught.
I should mention again the prisoner's insistence to Dr Strum that he did not touch the victim's body or know that she had fallen. I have the descriptions of witnesses concerning the struggle. The detail whether Mrs Chang was thrust to the ground by direct contact or by violent separation from her handbag is really immaterial. The prisoner was indifferent to what was happening to Mrs Chang and if he did not specifically observe her on the ground, it was because he was concentrating upon his own escape.
His youth, which I otherwise consider significant, does not excuse or substantially mitigate such conduct. Recognising that the Crown's acceptance of plea of guilty to manslaughter also accepts that the killing was unintentional, and taking into account all the matters that have been advanced and are contained in the evidence, I have come to the conclusion that the crime indicted and the matters on schedule should be reflected in a total term of ten years penal servitude. The additional term should be three years.
I note from certificates handed up this morning that the prisoner is apparently making reasonably good use of his time in prison and I note he has been in continuous custody since 8 January 1997.
Thang Gia Uy Vo for the manslaughter of Kua Hua Chian Chang you are sentenced to a total term of ten years penal servitude to consist of a minimum term of seven years to commence on 8 January 1997 and to expire on 7 January 2004 together with an additional term of three years commencing on 8 January 2004. I specify that you will become eligible for parole on and from 7 January 2004.
110. It will be noted that his Honour made allowances for the applicant’s plea of guilty and for his particularly hard upbringing, including the fact that he had no family in Australia, but on the other hand said that he was “satisfied that he had an appreciation of the potential serious consequences of his action”.
111. With a conviction for manslaughter committed in the course of a robbery, a further conviction for armed robbery and another for supplying heroin, quite apart form his other offences, the applicant’s record can only be regarded as extremely serious.
112. The next issue for the tribunal to consider is the risk of recidivism. Direction No 21 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour.
113. A report prepared by a Department of Corrective Services Probation and Parole officer, Mr Ambrose Dinh, on 4 September 2006 (G pp79-80) noted that the applicant had responded positively to parole supervision and after completing the Vietnamese Offenders Drug and Alcohol Program on 22 August 2005, he had abstained from drug use. He was currently working full-time as a welder. He was currently living with a friend at Kurrajong Street, Cabramatta, but used that apartment only to sleep. The rest of the time after work, he spent at his “foster-sister’s” home to help her care for her children. His foster-sister had exerted a positive influence on the applicant’s behaviour. He had relapsed into heroin use in November 2005 but had sought subutex and naltrexone treatment and had abstained from drug use completely since then. Except for his driving under the influence conviction arising out of the accident in January 2006, his performance was described as satisfactory.
114. The psychologist’s report by Mr Nguyen (Exhibit A4) mainly consists of a repetition of the applicant's history as narrated by the applicant himself. Mr Nguyen administered no tests other than a short test for depression. He diagnosed the applicant as suffering from PTSD but conceded in cross-examination that he was not qualified to make such a diagnosis. He had estimated the applicant’s risks of recidivism as minimal, but conceded that he lacked the qualifications or experience to make such a prediction as well. I therefore do not consider Mr Nguyen’s evidence to be of great assistance.
115. While serving his sentence for manslaughter, the applicant does not appear to have been a model prisoner, having 15 incidents recorded against him (G p13). The evidence does not show the nature of those incidents or charges.
116. As Mr Poynder pointed out, the applicant's worst offences were committed during a relatively narrow timeframe. But that could partly have been because for seven years he was in custody and was presented with limited opportunities to commit new offences.
117. Ms Tran has exerted a positive influence on his behaviour, but he nevertheless relapsed into heroin use in November 2005 and early January 2006, at a time when, he claims, he was in a full de facto relationship with her. There was in fact a third relapse, as he took heroin six hours before receiving the naltrexone implant. That, apparently, was one of the drugs found in his system after the traffic accident on 26 January 2006 (Exhibit A4).
118. There remains a risk that if he is under stress or depressed for some reason the applicant may take heroin again. As Dr Tan explained, the effect of the naltrexone implant lasts only three months.
119. Further, it is implicit in Dr Tan’s report that the applicant had been warned that he should not drive in the days following the implant procedure. The fact that he disregarded that warning just because he was hungry suggests a continuing degree of self-centred irresponsibility.
120. The applicant has maintained steady employment and has abstained from drugs since then, but previously neither his work responsibilities nor his ties with Ms Tran’s family have prevented him from returning to heroin.
121. I therefore conclude that there is a significant risk of recidivism in this case.
122. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
123. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
124. Given the gravity of the applicant's principal offences, renewal of the applicant's visa would send an undesirable message to non-citizens contemplating, or involved in, criminal activity in Australia.
Expectations of the Australian Community
125. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
…
Visa refusal … 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.
…
126. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4). It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).
127. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]) and taking account of all the facts and circumstances (Re Afoa and Minister for Immigration and Multicultural Affairs [1997] AATA 82 at p87).
128. In my view, while the community would have compassion for the applicant’s hard upbringing, and would make allowances for the progress he has made to date on the path to rehabilitation, they would be influenced more than anything else by the gravity of the offences that he committed. In my view the community would expect visa cancellation in such a case.
The Best Interests of the Child
129. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
130. The applicant has no children, but paragraph 2.3(c) of Direction No 21 is broad enough to include a relationship such as the one existing between the applicant and Ms Tran’s children, provided that the relationship is a close one. In this case the children are Robinson Lam (aged 12), Daniel Lam (aged 6) and Vincent Lam (aged 4).
131. The applicant, Ms Tran and her mother described the relationship as a close one and see the applicant as a father figure for the children. The psychologist Mr Nguyen saw the children and Ms Tran interacting with the applicant in the visiting area for about a half an hour, but did not interview the children or discuss them in any detail in his report. At the hearing, the applicant was unable to say the date or month of the birthdays of any of the children, even though they have had three birthdays since he has been associating with Ms Tran, including during the year in which he says he was living with her virtually full-time. Two of the children have birthdays in the same month, July, which should have made them easier to remember. As birthdays are important to children, that is not an insignificant lacuna.
132. The question of the applicant’s relationship with the children is linked with that of his relationship with Ms Tran, and it is convenient to consider the latter at this point.
133. Neither party referred to the existence of a de facto relationship until their statements made in May 2007. As recently as November 2006 in their representations to the department, they were describing each other as foster-sister and foster-brother, and the applicant's relationship to the boys as that of an uncle. Their attempt to explain their earlier assertions as being because the children were too young fully to understand the relationship and they did not want them to feel insecure, or to think that their mother would not take care of them, is unconvincing. Those communications were with the department, and there was no reason why the children should ever become aware of their content. Further, it was the de facto relationship itself which was claimed to be making the children more secure and contented.
134. The conflicting and implausible explanations about the living arrangements are also hard to reconcile with the assertion that there is a close and stable de facto relationship. Until his detention, the applicant maintained his Broomfield Street apartment, on a continuous basis. The applicant said he did so because there was no room for his belongings at Ms Tran’s Jasmine Crescent house. She said he was continuing to pay the Broomfield Street rent in order to help her sister financially. Out of a weekly net wage of about $500, $150 is a substantial amount and neither of those explanations is plausible. In any event, Ms Tran apparently managed to find room for the applicant's belongings at Jasmine Crescent after he was detained. Ms Tran’s claim that she went to the Broomfield Street apartment once a week to clean it because there were pigeons there was not credible.
135. Mr Le’s written and oral evidence did not support the applicant's version. Mr Poynder submitted that while the applicant had told Mr Le that Ms Tran was his foster-sister, Mr Le had seen it develop into a relationship, and that was a small but important piece of evidence that did not come from a protagonist in this case. But Mr Le did not say that. He said the applicant had told him that Ms Tran was his foster-sister, but he had learned to look after her and her children as if they were his own family.
136. Mr Huy Tran described Ms Tran as the applicant's de facto wife, but he also described the applicant as “the provider” for the family, which he is not, as they are supported by Centrelink payments.
137. In that regard it is significant that Ms Tran has informed neither Centrelink nor the Child Support Agency that she is in a de facto relationship. Her explanation, which might be insufficient even if it were true, is that she does not need to inform them because the applicant gives her no money for herself, only for the children. Her evidence on that point conflicts with that of the applicant, who says that Ms Tran administers the finances and that he hands his whole pay packet over to her. Besides money for the children, he stated that he contributes to rent, food expenses and utility bills (Exhibit A10, para 59). At the hearing, he said that by “rent” he meant the rent on the Broomfield Street apartment, but that does not sit well with the context of his statement or with his payment of Ms Tran’s utility bills.
138. Finally, Ms Tran deposes that she and the applicant “plan to get married some time in the future” (Exhibit A11, para 43). The applicant, however, has never mentioned the possibility of marriage. Normally when two people undertake such a commitment, they are both quite clear about it in their own minds and it is an important circumstance in both their lives.
139. On the evidence before the tribunal, two hypotheses arise. One is that there is a de facto relationship and the parties are engaged in defrauding Centrelink and the Child Support Agency. The other is that there is no de facto relationship and the parties are attempting to mislead the department and the tribunal for the purposes of this application. Neither assists the applicant's case.
140. I find that the applicant has not established on the preponderance of probabilities the existence of a genuine de facto relationship between himself and Ms Tran. There are too many inconsistencies, implausibilities and changes of story.
141. The relevance of that finding for the interests of the children is that while it appears that some kind of association exists between the applicant and Ms Tran, it has not been shown to possess the degree of commitment and stability that is needed to assure any lasting benefit for the boys’ upbringing, especially bearing in mind that the eldest is entering adolescence. Nor is the relationship with Ms Tran or the children of long duration.
142. In many s 501 cases, this tribunal sees replayed a depressing scenario in which an adolescent boy, because of a dislike for his step-father or his mother’s latest de facto, leaves home or takes the wrong path or both. In light of the tenuous evidence about the applicant’s relationships with Ms Tran and the boys in this case, it is hard to feel confident that in the medium to longer term Mr Vo’s full-time presence in the household would on balance be beneficial for the boys. It could even be the opposite.
143. That conclusion flows from the evidence in this case and from tribunal experience. It is in no way inconsistent, however, with the findings of recent social science research, which increasingly stresses the importance of the father’s presence in a child’s development. But it is the biological father who is needed:
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Paternal deprivation is often associated with personal insecurity and poor self-concept. … In our society, young children who do not have a close relationship with their biological fathers are unlikely to receive consistent attention from any other male adult.
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Again,
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The quality of the parenting may continue to be lower even when the mother remarries. For a child who has already suffered through the parents’ divorce, the appearance of a new step-parent can amount to yet another disruption (Hertherington, Mavis and Clingempeel 1992). With another change in personnel can come new rules, new roles, and confusion. Where a child’s welfare is concerned, a step-parent is no substitute for the departed real parent. Moreover, with less commitment to the child, the step-parent is not likely to be as effective a check on the mother’s behaviour as the biological father. Nor does the presence of a stepfather ensure that the mother will have more time and energy for parenting. Rather, a stepfather often competes with the children for the mother’s time and attention, leaving the mother more stretched than ever (19999a: 94) (quoted in B Maley, Family and Marriage in Australia, Centre for Independent Studies 2001, 135, 149).
…
144. I therefore conclude that while Ms Tran’s children would suffer some temporary hardship if the applicant were removed to Vietnam, their best interests do not weigh heavily against visa cancellation in his case.
Other considerations
145. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
146. The applicant’s brother still lives in Vietnam and he is on good terms with him, although he has not seen him for many years. His elderly mother, who is in poor health, also lives there. He has no family in Australia and no business interests here either, although he has the prospect of resuming employment with Thai AMX as a welder if he is released into the community. He would face some hardship in becoming re-established in Vietnam after living in Australia (although mainly in custody) for 12 years, but he has marketable skills and the Vietnamese economy is reportedly growing rapidly.
147. Although I do not think the applicant has established the existence of a de facto relationship, I think Ms Tran, for her part, has a genuine attachment to him. While modern communications such as email, the internet, webcam and the Skype open-access videophone technology do help to alleviate the effects of separation at minimal cost, Ms Tran would suffer emotional hardship if the applicant were removed to Vietnam. At the same time, she was fully aware of his criminal record when she first met him. On her evidence, she must have known that the department was considering cancelling the applicant’s visa for over a year before she commenced an intimate relationship with him.
148. The applicant has made some progress towards rehabilitation, but his past lapses, three of which occurred after he commenced his association with Ms Tran, preclude any confident prediction that he will not re-offend.
149. In this case the considerations of community protection and expectations outweigh the best interests of the children and the other considerations.
150. The decision under review must be affirmed.
I certify that the 150 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .........[sgd]................................................................
R. Wallace, AssociateDate/s of Hearing: 4 June 2007
Date of Decision: 25 June 2007
Solicitor for the Applicant: Doan Lai, Janice Vu & Associates
Counsel for the Applicant: Mr Nicholas Poynder
Solicitor for the Respondent: Mr Anthony Cox, DLA Phillips Fox, Lawyers
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